The Disability Rights Commission, established in April 2000, is already showing that it has real teeth. In one of its first statements the commission announced that, although the full implementation of part three of the Disability Discrimination Act (DDA) - relating specifically to premises - does not come into force until 1 October 2004, current awareness of the provisions of the Act places a duty upon the designers of new and altered buildings to have due regard to those provisions.
This duty also applies to the management and operation of existing buildings - even where no construction is presently taking place or is proposed. It will be no defence to claim that a building designed prior to October 2004, but after April 2000, has not taken into account the full provisions of the Act. This is a significant ruling for disability rights and places a burden of responsibility on designers to understand the principles of the legislation now.
Audits and appraisals
With the key date set for October 2004 there is an increasingly urgent demand for reliable advice on the real consequences and provisions of the DDA. The recent launch of the National Register of Access Consultants, sponsored by the DfEE, aims to make architects aware of these issues (AJ 26. 10. 00).
Standards for inclusion in the register are rigorous, but members will form the only legitimate nucleus of skilled consultants able to provide access audits of existing premises and accessibility appraisals of designs in response to the ongoing implementation of the DDA.
Part M of the Building Regulations, was amended in October 1999 principally to include new dwellings.
Housing, including student residences, is outside the scope of the DDA, whereas the common parts of sheltered housing schemes for elderly people (where services are provided) fall within it. It should also be remembered that Approved Document M is only intended to provide guidance, since there may well be other ways of achieving compliance. Indeed, the preamble to the Approved Documents states that:
'There is no obligation to adopt any particular solution contained in an Approved Document if you prefer to meet the relevant requirement in some other way. '
The obligation falls on the designer to show that compliance, by other means, has been achieved.
The DDA Code of Practice will provide guidance on the interpretation of the provisions of the Act and will cite extensive examples of 'reasonable adjustments in practice'. It will also provide guidance on justifications for 'less favourable treatment or failure to make reasonable adjustments'; 'special rules affecting insurance, guarantees and deposits'; and, very importantly, guidance on 'selling, letting or managing premises'.
During the summer the commission held a wide consultation exercise on its proposals for a new code of practice: 'Rights of Access, Goods, Facilities and Premises', in preparation for the run up to October 2004. The next DDA code is to come out in February 2001, and the regulations relating to part three of the DDA, also to be published soon, will make reference to any new duties which will come into force on 1 October 2004. These new regulations will define the duties and powers under which 'reasonable adjustments', particularly to premises, will be required.
Given the much broader definitions of disability that apply under the DDA, it is also recognised that, 'features to which Part M did not apply will not be protected', even if Part M Building Regulation Approval has been granted. That is to say, even if a scheme addresses Part M responsibilities to the letter, but ignores other aspects which are not covered by Part M (for the specifics of that scheme), a prosecution can be brought on the basis of not having fully considered the disability implications of the overall proposal.
However, design solutions which were covered by such a Building Regulations Approval at the time of construction, which have met, and continue to meet those requirements, will not require further change.
Conflicting NHS advice
The implementation of such wide-reaching legislation is necessarily giving rise to a plethora of guidance and advisory documentation. But the document issued late in 1999 by the NHS Executive, Access to Health Service Premises: Audit Checklist, is particularly worrying. It has been distributed to the chief executives of health authorities, chief executives of NHS Trusts and general practice managers 'on request', with a discretion amounting almost to stealth. This may have something to do with an estimate from the NHS Executive that the possible cost of implementing the provisions of the DDA could well exceed £500 million.
It is a poorly constructed document which offers a demonstrably unsatisfactory format for carrying out access audits of health premises. It cobbles together design recommendations and guidance from Part M of the Building Regulations, (which only apply to new-build projects), from the NHS Estates Ergonomic Data Bank, and from the Royal College of Physicians''charter' checklist. As a result, it provides a mass of wholly conflicting criteria and guidance which, if used to carry out an audit of individual Health Service premises, could only result in a report open to extensive attack by a defendant in any action under the DDA. Members of the National Register of Access Consultants have been cautioned against accepting appointments requiring the preparation of an audit using the document.
Applying the standard
It is evident even now, that some documents, in addition to official government publications, will be of particular importance to implementation of the DDA between now and October 2004. Perhaps the most significant will be the issue of a new BSI code of practice on 'Access for Disabled People'. The draft of BS8300-2 : Section 12 was issued for consultation this autumn, and returns have just been closed.
It is probable that the finished code will represent the definitive set of space and accessibility standards against which tests of 'reasonableness'will be evaluated.
However, it may well give rise to some of the problems experienced with use of the parallel ANSI (American National) standards, which makes it difficult to determine which of several applications may be appropriate.
The detailed data set out in the proposed new British Standards code of practice are the outcome of extensive ergonomic research studies. Part 2, section 12 is of special significance in dealing with individual rooms and spaces, both domestic and public and their use by people with disabilities.
Perhaps the three most significant spaces are bathrooms, WCs and bedrooms, particularly in hotels and other 'short stay'accommodation.
The new draft BS code of practice provides detailed illustrations of six variations on bathroom layouts, each being intended to meet the needs of differing disabled users. Some provide specifically for independent use, whereas others make provision for varying levels of support and assistance. The draft code proposes minimum overall dimensions of a bathroom (for independent wheelchair use) that incorporates a corner WC layout. This room is increased from 2,000 x 2,400mm = 4. 4m 2, as shown in Part M Approved Document, to 2,200 x 2,700 mm = 5. 94m 2; an increase of 35 per cent in floor area (not shown).
For WCs, the layout described as a 'wheelchair WC compartment' in BS5810:1979 and in Part M was perceived as being for independent use. In the new draft it is now described as a 'corner WC layout'. The minimum overall dimensions of the compartment are increased from 1,500 x 2,000mm = 3m 2to 1,500 x 2,200 mm = 3. 3m 2; an increase of 10 per cent in floor area (Fig 1).
The new draft code introduces guidance on the design of a wheelchair WC compartment in which assistance can be safely provided, and transfers effected from either the left or right hand side. It is described as a 'peninsular WC layout', with minimum overall dimensions 2,800 x 2,200 mm = 6. 16m 2in floor area (Fig 2). Part M illustrates an 'accessible' hotel bedroom and en suite bathroom with minimum overall dimensions of 3,600 x 6,000mm = 21. 6m 2. In the new draft British Standard this is increased to 4,000 x 6,800 mm = 27. 2m 2; an increase of 26 per cent in floor area (Fig 3).
Unless clients are made aware that floor plan standards and sizes should be raised to cater for these changes, architects will have great difficulty in complying with tight meter-squared rates, or designs based around room dimension criteria, of the sort imposed by Housing Association design guides.
In spite of the extremely detailed guidance set out in the draft, and its provenance, there are some worrying aspects about the recommendations in relation to bathrooms, WCs and bedrooms. It is proposed that a fixed disposal container for sanitary items should be positioned beside the WC pan in both the corner and peninsular layout compartments. Unfortunately, it will clash with the wheelchair position of a user making a lateral transfer. In the peninsular layout compartment a 'pivoting wash basin arrangement' is proposed: a similar arrangement, proposed in Dublin in 1979, provided a vandals' paradise.
Most worrying of all, perhaps, is a discrepancy over the positioning of support rails in relation to the WC pan. In both the corner and peninsular layouts the dimension between the centre-line of the pan and adjacent drop-down support rails is 320mm.
However, in the case of the corner layout the dimension between the centre-line of the pan and adjacent fixed, wall-mounted support rails is 420mm, as has applied for years through both BS5810:1979, and Part M. This greater dimension has consistently proved to be excessive for most wheelchair users - it should be reduced to 320mm.
There must even be some concerns about the terminology employed: 'non-slip' is an unsafe term at law, and few manufacturers will accept its implications - the appropriate term is 'slip-resistant'.
Taking the opportunities
The period between now and October 2004 will be crucial in determining whether the DDA is ultimately perceived as yet another piece of legislation creating endless opportunities for 'compliance'and dispute.
Looking on the bright side, it could offer an opportunity to develop a much greater understanding of how the built environment serves the needs of people with disabilities.
John Penton is an architect and consultant member of the National Register of Access Consultants, tel 020 7234 0434. He is author of The Disability Discrimination Act: INCLUSION, published by RIBA Publications.
Manufacturers and service providers in the construction industry are starting to exploit the potential impact of the DDA as a marketing and PR opportunity. The recent Ingersoll-Rand booklet is a good example of the resulting publications giving useful summaries of the DDA's provisions. It should be used with care, however, as it does not distinguish sufficiently clearly the provisions of the DDA and those of Part M. It is also rather unclear about the specific implications of the application of those provisions to premises in October 2004. Tel 0121 717 7777.
A retrospective duty has been placed on designers to take into account the full provisions of the DDA during the period April 2000 to October 2004.
Access audits of existing buildings and design accessibility appraisals are needed urgently. Most tenders for public sector projects, including the facilities management of the government's buildings, require recorded evidence of compliance with both.
The scope of the DDA goes considerably further than Part M of the Building Regulations, and will apply to all buildings in public use, including those for which a Part M approval exists, or may be granted in future.
All premises, whether existing, being altered, or newly built will be assessed against the criterion of 'reasonableness' in relation to the provisions of the DDA, when an action is being brought under the Act.
'Reasonableness' is open to interpretation.
The basis on which access audits and access appraisals are carried out needs to be considered with care as the resulting documents may well be used as evidence in an action brought under the DDA.
The NHS Executive document, Access to Health Service Premises: Audit Checklist, is substantially flawed and its use should be avoided.
Members of the National Register of Access Consultants have been cautioned against accepting appointment requiring the preparation of an audit using the document.
Reliance should be placed only upon documentation and design guidance of proven credibility and reliability as sources are likely to have to be cited in support of evidence given in court (see the 'reasonableness' compliancy).
The proposed new British Standard, 'Access for Disabled People', seems likely to introduce extensive new design criteria which will be relevant to the full implementation of section three of the DDA before October 2004.
The guidance set out in the draft British Standard is based upon specially commissioned ergonomic studies.
The draft new British Standard proposes an increase of 35 per cent to the minimum floor area of a wheelchair-accessible bathroom.
The draft also proposes an increase of 10 per cent to the minimum floor area of a WC compartment for independent wheelchair use.
The new draft introduces design guidance on a WC compartment for wheelchair use, where assistance can safely be provided.
It also proposes an increase of 26 per cent to the minimum floor area of an 'accessible' hotel bedroom with an minimum en suite bathroom It should be recognised that detail in design and precision in application, related to the specifics of each case, are of critical importance to the independence of many disabled people.