Joint Committee on the Draft Disability Discrimination Bill

Joint Committee on the Draft Disability Discrimination Bill First Report

CHAPTER 8: HOUSING (CLAUSES 6 AND 7)

Discrimination in relation to letting of premises (Clause 6)

298. Part 3 of the DDA already includes protection against some forms of discrimination in relation to the sale and letting of premises.[346] In common with the other provisions for goods and services, a person discriminates under the sections in the DDA concerning premises if he treats a disabled person less favourably than a non-disabled person and cannot justify that treatment.

299. Under section 22 of the DDA it is unlawful for a person selling, disposing of or letting premises to discriminate against a disabled person:

in the terms on which he offers to dispose of the premises to the disabled person;
by refusing to dispose of the premises to the disabled person; or
in his treatment of the disabled person in relation to any waiting list for the premises.

There is an exemption for private sales or lettings.

300. Section 22 also makes it 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.

Further, it is unlawful to discriminate by withholding a licence or consent for the disposal of premises to the disabled person.

DRAFT BILL CHANGES

301. Clause 6 of the draft bill will insert new sections 24A to 24J into Part 3 of the DDA. The new provisions introduce the concept of "reasonable adjustments" for all lettings of property. As a result, it will be unlawful for landlords and managers of rented premises to discriminate against a disabled tenant or prospective tenant by failing, without justification, to comply with a duty to provide certain forms of reasonable adjustments for the disabled person. A landlord or manager will, under specified conditions, be required to take reasonable steps to provide auxiliary aids and services for a disabled person and to change policies, practices and procedures.

302. The circumstances under which it would be reasonable to provide an auxiliary aid or service are where it would:

enable a relevant disabled person to enjoy premises;

enable a relevant disabled person to make use of any benefit, or facility, which by reason of the letting is one which he is entitled to make use of; or

facilitate a relevant disabled person's enjoyment of the premises or his making use of any such benefit or facility;

but would be of little or no practical use to the relevant disabled person concerned if he were neither a person to whom premises are let nor an occupier of them.

303. Subject to a number of conditions, the duty to change a practice, policy or procedure arises where it has the effect of making it impossible, or unreasonably difficult, for a relevant disabled person:

to enjoy the premises; or
to make use of any benefit, or facility, which by reason of the letting is one which he is entitled to make use of; or
a term of the letting has that effect.

However, a landlord or manager of premises will not be required under the new provisions to take steps which would involve removing or altering a physical feature of the property.

Meaning of "reasonable adjustments"

304. The proposals to extend the duty to make some reasonable adjustments to landlords of rented property were widely supported and considered to be an important step towards ensuring that housing and services were accessible to disabled people.[347]

305. However, a number of groups submitted that the meaning of the term "reasonable adjustments" used throughout the DDA and the draft bill required clearer guidance.[348] The National Housing Federation (NHF) stated that the Government's guidance on reasonable adjustments[349] had been subject to inconsistent interpretation. It warned that the inconsistency would continue with the extension of reasonable adjustments to the area of rented housing.[350] Richard Price, from the National Federation of Residential Landlords (NFRL), also stated that it was difficult for landlords to know what adjustments it would be reasonable to offer a tenant. He added: "we would welcome some more detailed talk on what is reasonable and what is not reasonable".[351]

306. Similarly, a number of groups asked for further clarification as to what kinds of auxiliary aids and services could be required to be provided under the bill.[352] The NHF expressed concern as to how the provision would be translated into practice. Richard Cullingworth, a Chartered Building Surveyor, argued that the definition of what might constitute an auxiliary aid had to be carefully drafted to clarify what adjustments a landlord would reasonably be expected to make. He also stated that references to adjustments allowing a relevant person to "enjoy" premises were too vague.[353]

307. The Explanatory Notes to the draft bill indicate that landlords could be required, as a reasonable adjustment, to read out tenancy agreements to prospective tenants who were blind or partially sighted.[354] We put this suggestion to Richard Price:

"I think that would be a very unreasonable and unwise thing to do because the whole point and purpose of a written agreement is so that there is a good understanding of it."[355]

He was, however, open to the possibility of increasing the accessibility of tenancy agreements through the provision of tape recordings.[356] Further evidence suggested that tenancy agreements could be produced in an easier to read version, for example through the use of pictures.[357]

308. The duty on landlords to provide reasonable adjustments to policies, practices and procedures and to provide auxiliary aids was generally welcomed. However, the evidence revealed widespread uncertainty concerning the meaning and scope of the concept of "reasonable adjustments", and exactly what auxiliary aids and services landlords might be expected to provide. Housing groups representing both tenants and landlords highlighted the difficulties that could result from the lack of clarity in this area. We recommend that the DRC code of practice on housing should, following consultation, clarify the extent of the duty on controllers of premises to provide reasonable adjustments under the draft bill, and explain exactly how the duties will work in practice.

Extent of duty to make reasonable adjustments

309. There were also some concerns that the duties imposed under the draft bill did not go far enough. The Chartered Institute of Housing (CIH) highlighted that the duty on the controller of let premises to provide reasonable adjustments was limited to him acting upon such a request made by, or on behalf of, the person to whom the premises are let or relevant disabled person in the question of letting the property. They recommended that, where controllers such as managing agents were responsible for a number of properties, the duty should be more active; they could at least ensure that their practices, policies and procedures in advertising and letting properties did not disadvantage a disabled person in becoming the one to whom the premises were let. Furthermore they could ensure that they had auxiliary aids or services in place.[358]

310. The Government have given assurances that local authority landlords and the Housing Corporation and Communities Scotland, as public bodies, will have to take account of the general duty in clause 8 to promote equality for disabled people by improving opportunities for disabled people. This duty applies to the housing functions of all public bodies. The Committee concludes that the duty under clause 8, provided it is well understood and enforced, offers the most appropriate way to secure an active approach by public housing organisations, and the housing providers they fund, to meeting the full range of housing needs of disabled people.

Withholding of consent by landlords to the making of physical alterations to premises

CURRENT POSITION

311. The DRTF's report From Exclusion to Inclusion made a number of recommendations concerning the housing sector, including raising awareness amongst owners of premises of the benefits of physical adaptations to increase accessibility for disabled people. [359] It recommended that landlords should not be able unreasonably to withhold consent for a disabled person to make, at the disabled person's expense, physical changes to their premises. However, the Government did not include this recommendation in the draft bill as they considered that adequate provision was already available under section 19(2) of the Landlord and Tenant Act 1927 (LTA). Section 19(2) makes it unlawful for a landlord unreasonably to withhold consent to the making of improvements by all tenants, whether disabled or non-disabled. However, section 19(2) only operates where there is a provision in a lease or tenancy agreement allowing the tenant to make improvements to the relevant property with the consent of the landlord. If there is an absolute covenant or prohibition against making adjustments, section 19(2) would not be applicable and it would be lawful for a landlord to refuse to allow a tenant to make any alterations to the premises. The Explanatory Notes to the draft bill suggest that, under the new provisions requiring a landlord or manager to change a policy, practice or procedure which makes it impossible or unreasonably difficult for a disabled person to enjoy premises, a landlord or manager might (where it is reasonable to do so) be obliged to "change or waive a term of the letting which forbids any alterations to the premises, so as to allow a disabled tenant to make alterations needed by reason of his disability with the consent of the landlord".[360] The LTA would then be applicable.

EVIDENCE

312. The majority of evidence received by the Committee on clause 6 concentrated on the Government's failure to include specific provision in the draft bill prohibiting landlords from unreasonably withholding consent for a disabled person to make physical adaptations to premises. Shelter warned that:

"Refusing disabled people the right to make adaptations to their homes is ... likely to restrict the day-to-day activities that they are able to carry out. In effect, this will mean that many people with disabilities are left in inappropriate accommodation; this in turn will jeopardise their ability to live independently."[361]

313. The DRC submitted evidence that showed that 9% of disabled tenants (approximately 18,000 people) living in unsuitable accommodation reported that necessary modifications were not made because the landlord had refused consent.[362] The CIH stressed that:

"It is important to appreciate that the positive right to make alterations/adaptations as proposed by the DRTF still allows a test of reasonableness in its application. It does not override the rights of the property owner, but seeks to bring a balance between those rights and the rights of disabled people to appropriate accommodation."[363]

314. Witnesses' criticisms of relying on the LTA to protect disabled people can be summarised as follows:

The LTA is general in application and is not framed in the context of disability anti-discrimination legislation.
The LTA only covers current lettings and therefore does not provide a right to reasonable adjustments on prospective lettings accommodations.[364]
It only extends to the "demised" premises under the lease and does not cover the common parts of a building[365] or management committees.[366] Alterations to the exterior of a building, such as the installation of a grab rail or a ramp would not be included. (This point is addressed in paragraphs 322 to 325.)
It is currently unclear to landlords and tenants when it would be reasonable to refuse or grant consent to the making of alterations.[367]
It favours the landlord as the onus is on the tenant to show that the landlord unreasonably withheld consent. The Law Society submitted that in many cases it has proved difficult to get legal evidence of this.[368]
The DRC does not have any power to issue Codes of Practice under landlord and tenant law.[369]
The DRC does not have the power to bring cases on behalf of disabled people under landlord and tenant law.[370]
The LTA does not extend to Scotland.

315. The NFRL put forward the contrary view; that the LTA was sufficient and no further legislation was needed.[371]

316. The Welsh LGA did not comment on the adequacy of the protection afforded by the LTA to disabled people, but recommended that in order to avoid confusion specific reference should be made to the LTA in the bill.[372] Shelter was of the opinion that further consideration was required of the factors that determined when it was reasonable for a landlord to withhold consent from a disabled person to make adaptations. It recommended that a regulatory clause should be inserted into the draft bill, setting out the type of alterations that would be permissible in given circumstances. It believed that this would provide flexibility to respond to changes in technology and user expectations.[373]

CONCLUSION

317. The evidence revealed widespread dissatisfaction with the Government's failure to include a specific provision in the draft bill prohibiting a landlord from unreasonably withholding consent to the making of adaptations. The means of redress for a disabled tenant whose lease contains an absolute covenant against making alterations is undoubtedly onerous. First, the tenant would if necessary have to use the draft bill provisions in order to get the absolute covenant declared "unreasonable". The Explanatory Notes to the draft bill suggest that this may (not will) be granted. Then, the tenant would, if necessary, proceed under section 19(2) of the LTA.[374]

318. Even if a disabled person was entitled to make alterations under a lease with the consent of the landlord, the DCC stated that the use of the LTA to plug a gap in civil rights legislation was insufficient in the rights that it afforded.[375] They warned: "it is also a matter for serious concern that such an important issue of civil rights for disabled people (independent living) is left to an area of land law".[376]

319. The Minister for Disabled People admitted that this area of the law was complicated, but insisted that there was no need for further legislation when a statutory means of redress was already available in the form of section 19(2) of the LTA and similar provisions in the 1980 and 1985 Housing Acts.[377] She further argued that because the LTA applied to everyone a landlord would not be able to challenge an application under that legislation on the basis that the tenant was not disabled, as they would be able to do if the provision was in the DDA.[378]

320. However, the focus of the criticisms of the LTA concentrated on the very fact that the provision was general in its application and not specific to the needs of disabled people. The DRC claimed:

"There have been no cases under existing legislation on behalf of disabled tenants on this issue and it is by no means clear that judges would apply appropriate anti-discrimination framework in cases under current law. What is "reasonable" will not necessarily take into account the same considerations as under the DDA."[379]

The DRC stressed that they were not seeking to change land law in general:

"As far as we are concerned, landlords could be allowed to have such a clause in their tenancy agreements, but it would have to be made subject to a specific provision within the disability bill that, where the adaptation was required by a disabled occupier, the landlord should not withhold consent."[380]

321. The evidence indicates that the LTA does not provide adequate protection for the specific needs of disabled people. The Committee therefore recommends that a specific provision prohibiting a landlord from unreasonably withholding consent to the making of appropriate physical alterations in respect of a disabled person should be included in the full bill.

Physical alterations to communal areas

322. The LTA was criticised by a number of groups on the ground that redress available under section 19(2) did not apply to communal areas but was limited to demised premises. There also appeared to be some confusion as to whether the duty on controllers of premises to make reasonable adjustments under the draft bill extended to communal areas of rented premises.

323. The Disability Law Service asked for clarity in the definition of premises so as to include the common parts. They stated that in their experience most problems of access occurred in the common parts of a domestic dwelling.[381] Richard Cullingworth also recommended that the provisions for common parts should be examined.[382]

324. In response to queries as to whether the full bill's provisions should apply to communal areas, the Minister for Disabled People relied on the fact that the DRTF had not proposed such an extension. She stated:

"We have considered common parts when drafting this Bill, even though no proposals were made by the DRTF, and therefore coverage of this area was not part of our manifesto commitment or our commitments towards inclusion. We do not believe tenants should be able to make adjustments to areas over which they have very limited rights."[383]

325. Despite the position taken by the Government, the Committee considers that provisions allowing reasonable alterations to communal areas are necessary to ensure that disabled people can enjoy the fundamental right of access to their property. As with other alterations under the draft bill, the test of reasonableness would apply to alterations made to communal areas. It is important to note that an alteration that would be reasonable in respect of demised premises would not necessarily be a reasonable one to make for a communal area. Accordingly, the Committee recommends that the full bill includes a specific provision prohibiting controllers of premises from unreasonably withholding consent to the making of reasonable adjustments to communal areas.

Further evidence on physical alterations

326. A few witnesses commented on the funding and other arrangements for the making of physical alterations to premises. This issue is not one which has so far come under anti-discrimination legislation such as the DDA: at present, funding is available through a separate disabled facilities grants (DFGs) system, intended to help disabled people to make adaptations to gain better freedom of movement into and around their homes and to give access to essential facilities within the home. The draft bill would not alter any funding arrangements. The Committee did not take enough evidence to be able to reach conclusions on the system of funding for the making of physical alterations.

327. The Committee was, however, impressed by one suggestion made by the NHF and the BCODP, who suggested that premises that had been appropriately adapted to accommodate disabled tenants should be put on an accessible housing register as "a way of systematising the supply of suitable accommodation to a suitable group of people who would be in need of it".[384] This measure has already been proposed as an amendment to the Housing Bill, though it was not agreed to.[385] The Committee recommends that the Government consider whether the full bill would be an appropriate vehicle for introducing an accessible housing register in order to simplify the process of matching suitable accommodation to disabled people. If the bill is not found to be appropriate, the Government should consider how best to introduce such a register.

Exemption for Small Dwellings (Clause 7)

CURRENT POSITION

328. Section 23 of the DDA provides, under specified conditions, an exemption from the provisions of the DDA in relation to small dwellings. The exemption is complicated, but in essence it generally applies to owner-occupiers or their family members who let part of the property in which they live.

DRAFT BILL CHANGES

329. The exemption remains and, therefore, the new provisions inserted by clause 6 of the draft bill will also not apply to small dwellings. However, under clause 7, the Government propose to take a power to amend or repeal that exemption by statutory instrument.

EVIDENCE

330. The House of Lords Delegated Powers and Regulatory Reform Committee questioned whether the powers conferred on the Secretary of State to amend the exemption were inappropriately wide.[386] As currently drafted, clause 7(1)(b) would allow the Government not only to end the exemption, but also to amend it "in any way" the Secretary of State "considers appropriate", which could legitimately mean enlarging the scope of the exemption rather than reducing it.

CONCLUSION

331. The Committee recommends that, in light of the report by the House of Lords Delegated Powers and Regulatory Reform Committee, the Government should reconsider the drafting of the power in clause 7.