Landlords and Managers of Premises

Reasonable adjustment duty law from 31st December 2007

The Disability Discrimination (NI) Order 2006 amends Part 3 of the Disability Discrimination Act and extends the reasonable adjustment duty to landlords and managers, in relation to premises (both commercial and residential) that they let to disabled tenants or prospective tenants with disabilities.

Those who manage or dispose of premises and land have an already have an obligation under DDA 1995 not to treat disabled people less favourably without justification. The DDA makes it unlawful for people letting or selling land or property to discriminate against disabled people. These provisions apply to the Housing Executive, housing associations, private landlords, property management companies etc. Discrimination occurs when adisabled person is treated less favourably and this treatment cannot be justified. An example would be offering less favourable terms to a disabled person, refusing to sell or let to a disabled person, evicting a disabled person etc.The DDA also makes it unlawful to victimise disabled people who make use of or try to make use of their rights under the law. People without disabilities are protected if they assist a disabled person in persuing a complaint about disability discrimination.

Please refer to the Code of Practice for Access to Goods, Facilities, Services and Premises for further information.

From the 31st December 2007, landlords and managers have a duty to make reasonable adjustments to let premises, premises for let, or managed properties.

Landlords and managers of premises must take reasonable steps to overcome barriers which may be experienced by a disabled tenant, prospective tenant or lawful occupier created by the way in which premises are managed or let. The reasonable adjustment duty in relation to premises is not anticipatory to disabled people at large. It only arises if an individual disabled person asks for an adjustment.

Who has to make adjustments?

Landlords, managers of rented premises or premises which are available for rent, or “controller” have to make reasonable adjustments. A controller of premises is the person who lets or seeks to let the premises or who manages the premises . This would include a management or residents committee of a block of flats and any other person who in practice has control over how the premises are managed or let. Those who are selling do not have a duty to make reasonable adjustments to premises. However they do have duties as service providers to the public or a section of the public.

Who is counted as a disabled person?

A disabled person is defined under Part 1 (definition of disability) of the DDA. Disabled people include people with mental health conditions, diabetes, heart problems, people diagnosed with cancer, MS, HIV etc. For more information please refer to the definition of disability factsheet

What premises are covered?

The reasonable adjustment provisions apply only to premises that are let, or to be let, and cover all forms of tenure, including long leases, assured shorthold tenancies, shorthold tenancies, and secure tenancies. This is not an exhaustive list. Those who are selling premises as opposed to letting or managing them do not have a duty under the premises provisions to make reasonable adjustments. They do have duties as a service provider to the public.

The request for an adjustment to premises

The request may be in writing but does not have to be. It could be made verbally, during a formal meeting or in a telephone call. It does not have to specifically ask for ‘an auxiliary aid or service’ or a change to a ‘practice, policy, procedure’ or a term of the letting. It will amount to a request for the purposes of the Order if it is reasonable to assume from what is said or written that an auxiliary aid or service or a change to a practice, policy, procedure or term has been requested.

What are reasonable adjustments?

The reasonable adjustments that landlords and managers may need to make include:

• altering their policies, practices or procedures;
• providing auxillary aids or services; or
• changing the terms of letting (but only in respect of premises that have already been let)

For example:

A landlord has a practice of visiting all of his tenants periodically for a quarter of an hour to check on the state of the premises and that the tenant is happy with everything. One tenant has learning difficulties. When the landlord visits this tenant he always arranges a half hour appointment for this because this person needs more time to understand what the landlord is saying or doing. This is a change in practice.

A landlord has a tenant who is visually impaired. He ensures that all written correspondence sent to her is in large print. This is an auxiliary aid.

A landlord waives a term of the letting which prohibits the keeping of pets, in order to allow a blind tenant to keep an assistance dog on the premises. This is change in policy.

A disabled tenant with a learning disability is accused of anti-social behaviour by a neighbour who reports that he is playing football against her house late into the evening and is rude to her when she asks him to stop. The housing association’s policy in these circumstances is to send a letter to a tenant accused of anti-social behaviour warning them about the complaint and detailing the potential effect on their tenancy if the behaviour persists. The disabled tenant’s key worker contacts the housing association and explains that he cannot read the letter sent to him. The housing association alters its policy by agreeing to visit the disabled tenant personally to explain the complaint to him and talk to him about his behaviour. This is likely to be a reasonable step for the housing association to have to take.

Physical features

A landlord or manager will not have to take any steps that would involve the removal or alteration of a physical feature. The DDO prescribes things which are, and are not to be treated as physical features and alterations of physical features.

The following are to be treated as physical features:

• Any feature arising from the design or construction of the premises;
• Any feature of any approach to, exit from or access to premises;
• Any features in or on premises; and
• Any other physical element or quality of any land comprised in the premises.
  

Any furniture, furnishings, materials, equipment or other chattels in or on the premises are not to be treated as physical features

The following are not to be treated as physical features and are to be treated as auxiliary aids and services:

• Removal, replacement or provision of any furniture, furnishings, materials, equipment or any other chattels;
• Replacement or provision of any signs or notices;
• The replacement, provision or adaptation of any doorbell, or door entry system; and
• Changes to colour of any surface (eg door, wall etc).
  

The legislation also prescribes what are auxiliary aids and services and provisions about changing a term of letting in relation to let premises.

Examples of requests for changes

Disabled tenants or prospective tenants could request changes to car-parking, access to the gardens and access to laundry facilities etc.

What is meant by reasonable steps?

The duty to make reasonable adjustments places controllers of premises under a duty to take such steps as it is reasonable in all the circumstances of the case for them to have to take in order to make adjustments. The Act does not specify that any particular factors should be taken into account. What is a reasonable step for a particular controller of premises to have to take depends on all the circumstances of the case. Without intending to be exhaustive, the following are some of the factors which might be taken into account when considering what is reasonable:

• the nature of the letting (eg the type and length);
• the effect of the disability on the individual disabled person;
• the effectiveness of any proposed step;
• the extent to which it is practicable to take the steps;
• the financial and other costs of making the adjustment;
• the extent of any disruption and the effect on other tenants which taking the steps would cause;
• the scale of the controller’s operation (for example, the number and/or value of holdings);
• the extent of the controller’s financial and other resources;
• the amount of resources already spent on making adjustments;
• the availability of financial or other assistance; and
• in the case of an adjustment affecting the controller’s private household, the extent to which taking the step would cause disruption to the household or any person living there.

For example:

A private housing association has a team of maintenance contractors to carry out works and repairs necessary on the association’s properties. The works are carried out in order of receipt of the request. This policy sometimes results in a delay between the request for a reasonable adjustment and the completion of any work required (such as the installation of easy-to-use taps) as the request may not appear to be a priority one, despite its impact upon the disabled person concerned. To minimise the delay, the policy is altered so that a request for a reasonable adjustment is given priority over non-emergency work. This is likely to be a reasonable step for the housing association to have to take.

Reasonable steps where third party consent to change a term of letting is required.

Reasonable steps where a term of letting of a dwelling house prohibits improvements.

Victimisation

In addition to the general victimisation provisions contained in the 1995 Act, there are particular provisions relating to these reasonable adjustment duties. The Act protects any tenant – whether disabled or not – from victimisation by a controller of let premises (for example, evicting him or increasing the rent) because of the extra costs incurred in meeting a reasonable adjustment duty.

The DDO makes it unlawful for a controller of let premises to discriminate against a person to whom the premises are let where there is a duty to make reasonable adjustments for a disabled person who is lawfully occupying the premises (for example, the disabled spouse or child of the tenant).

Discrimination in these circumstances occurs where:

• the controller treats the tenant less favourably than he treats, or would treat, other persons whose circumstances are the same as the tenant; and
• he does so because of costs incurred in taking steps to avoid liability under the reasonable adjustment duty for failure to comply with the duty.

For example

A non-disabled tenant has asked for and been provided with a reasonable adjustment in the form of a short-pile carpet for his daughter, who is a wheelchair user. The landlord increases the tenant's rent shortly afterwards, with no prior notice. No-one else’s rent has been increased and the increase seems to be purely because the tenant has requested an adjustment. This is likely to amount to discrimination and to be unlawful.

Justification of less favourable treatment in relation to premises

Less favourable treatment of a disabled person for a reason relating to disability, or a failure to comply with the reasonable adjustment duty in relation to an individual, amounts to discrimination unless that treatment or failure can be shown to be justified.

The DDA sets out five possible conditions which could apply, but for ease of explanation we deal with them under four headings:

• health or safety
• incapacity to contract
• treatment necessary in order for the disabled person or other occupiers to use a benefit or facility; and
• treatment to recover extra costs

As will be seen, these conditions do not apply to all forms of discrimination in relation to premises (for example, the only conditions applicable to a failure to make reasonable adjustments are health and safety and incapacity to contract).

Regulation 2 of the DDO (NI) 2006 sets out the conditions where the justification that a disabled person is incapable of entering into an enforceable agreement or of giving informed consent does not apply. For example, when another person is acting for a disabled person under Enduring Power of Attorney or functions conferred by or under Part 8 of the Mental Health (NI) Order 1986 (d).

Exemptions

A person with power to dispose of any premises may be prepared to grant a tenant a right to occupy the premises on condition that the tenant pays a deposit . The deposit is usually refundable at the end of the occupation if the premises and its contents are undamaged. Regulation 3 remakes Regulation 7 the Disability Discrimination (Services and Premises) Regulations (Northern Ireland) 1996 which deals with the circumstances in which less favourable treatment is justified in respect of withholding deposits for rented premises. The Regulation sets out a set of conditions, which, if satisfied, may justify the withholding of a deposit. For example, a landlord may be able to justify withholding part or all of a deposit to compensate for severe wear and tear caused to carpets by a wheelchair.

For further information

Enquiry line for the Equality Commission NI:

• legal information for individuals who may be experiencing disability discrimination
• information for people who let or manage premises

Office of First Minister and Deputy First Minister (OFMDFM) website

The DDO was made in February 2006 following consultation http://www.ofmdfmni.gov.uk/index/equality/disability/new-disability-discrimination-order.htm

This statutory rule (along with three others to support the DDO) was subject to a separate consultation exercise.
http://www.ofmdfmni.gov.uk/index/equality/disability/consultation-on-disability-regulations.htm

No changes to the legislation were made as a result of the consultation.

Housing Rights Service

The Housing Rights Service works to achieve positive change by protecting and promoting the rights of people who are in housing need in Northern Ireland. All their advice, representation, training and information services are delivered throughout Northern Ireland and focus on the key areas of preventing homelessness; accessing accommodation; tackling affordability and poor housing conditions.

Housing Rights Service
Middleton Buildings
10-12 High Street
Belfast, BT1 2BA

Tel.028 9026 7925
Text 028 9024 5640
Fax 028 9031 2200

www.housingrights.org.uk

Need housing advice? www.housingadviceNI.org

Downloads:
Flow chart for people who have potential complaint under premises