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Government uses guinea pigs to test moving goal posts!

Legal matters

Media wisdom has it that only five topics really attract a following. When considering snappy titles with which to lure the unsuspecting reader to one's contribution it is worth bearing these in mind. They are - sex, royalty, health, animals and religion. Submissions from journalists invited to submit a headline featuring as many of these as possible included - 'sex change vicar gives kiss of life to royal polo pony' and 'pregnant nun in palace corgi liver swap mercy dash'.

The combined territory of the construction industry and the law may be seen as something of a wasteland for intriguing headlines - the Independent recently proved the exception with its line about the industrial dispute at a drug manufacturing plant: 'Viagra men down tools'.

Unfortunately the onerous, yet uncertain, provisions of the Disability Discrimination Act may provide fertile ground for industry press hype. The proposals, to be brought into force between 1999 and 2004, will apply to all service providers, that is anyone responsible for a building to which members of the public have access. Service providers will owe a duty to any disabled person who finds it 'impossible or unreasonably difficult' to make use of their service, to make changes to overcome the problem.

Clearly the duty is very wide, encompassing as it does all services, from banks to youth hostels (but excluding education and transport) and any disability - the needs of the visually impaired differ markedly from those of the non-ambulant. Building owners and their consultants will require clear guidelines as to what physical changes in both infra- and superstructure will be required to comply with such an open-ended obligation. But rather than impose defined requirements by way of, for example, the Building Regs, and require the service provider to obtain a certificate of compliance, the government proposes to adopt what it calls 'a light touch' and leave it to the courts: the rationale being that it should be an evolving duty.

This approach is unsatisfactory for any number of reasons:

the difficulty encountered in using the service will depend upon the disability of the complainant. The building owner will be obliged to accommodate a wide variety of specialist needs without guidance

the service provider may implement changes to avoid recognised difficulties but a complaint can still be pursued if the changes do not go far enough or are unreasonable

neither building owner nor complainant will have a yardstick against which to judge the position. Only expensive court action can establish whether the complaint is justified

as each case will depend on the needs and facilities of the individuals involved, even a succession of court decisions may fail to establish criteria for general application

the courts are an inappropriate forum for determining these issues. The stated objectives require particular expertise and consultation with special interest groups

building owners who rely on their consultants' advice will not escape liability: nor will the consultants

even if the courts are able to establish clear-cut criteria, service providers will still be obliged to take account of continuing developments and current thinking in the field of access for the disabled, and check and re-check that their building complies.

The objectives of the legislation are to be welcomed; the proposed modus operandi leaves a lot to be desired and may be seen as something of a cop out. It will have only itself to blame if it finds itself at the wrong end of headlines such as 'Institutions used as guinea-pigs for Disability Act test case' and 'Government moves goal posts for disability rights'.

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