The rights-for-the-disabled Disability Discrimination Act was signed into law on 8 November 1995. Many of its provisions have since then been implemented, but not the ones which concern architects, the owners and managers of public buildings, and indeed most people with disabilities. These are the 'access rights' provisions in Part 3 of the dda, the part concerned with discrimination in the area of goods, facilities, services and premises.
Under section 21 in Part iii, a service provider (who may or may not be the building owner) will have two related duties in order to deliver access rights. One will be to provide auxiliary aids or services which will help disabled people make use of the services, the other will be to do all that reasonably can be done, in all the circumstances of the case, to make the premises accessible to, and usable by, disabled people.
Under sections 19, 20, 24 and 25, a disabled person who comes across the building in question, and finds it not as conveniently accessible to him as he reckons it could be (meaning, as he sees it, that not all that could reasonably have been done has been done) will have the right to ask for the premises to be altered to take account of his particular access needs. Should the service provider reject his demands on the grounds that they are impracticable or unreasonable, and should negotiation and conciliation processes fail, the disabled person, if still dissatisfied, has the right to sue and take to court that service provider and seek redress.
When Part iii comes to be fully enforced, building owners will face problems. Their section 21 duty to do all that they reasonably can will be to 'disabled people'. And disabled people have disparate characteristics and capabilities, and disparate access needs. In many circumstances they cannot all be accommodated conveniently - there is, for example, no single type of wc facility which is convenient for all disabled people. What pleases one may infuriate another. Faced with a single step to a high-street shop, a wheelchair user may demand that it be ramped. When it is ramped, an ambulant disabled person may complain of the safety hazard and insist that the step be re- instated, if need be with a suitable handrail.
To protect themselves, service providers will need to be assured that they have done all that they reasonably can, and for that there will have to be a section 21 compliance certification system. This is, it seems, a principle established in consultation papers issued back in March 1996 by the National Disability Council, the body set up to advise the government on the implementation of the dda. One proposal was that any building which when constructed had been subject to Part M and complied with its requirements would be deemed to satisfy section 21. For other buildings, the proposal was that the bsi would prepare an access standard, with conformity with the standard being deemed to satisfy section 21 requirements. For businesses and their disabled customers, the paper said, there could be considerable advantages in the resulting certainty of compliance.
The government is, however, apparently prepared to drop the principle. The inference to be drawn from a series of recently issued papers is that it does not now intend there to be a section 21 compliance mechanism, and has no idea how regulations for the enforcement of section 21 are to be produced. It has, none the less, announced that Part iii is to be fully enforced by 2004.
When Tony Blair's Labour government took over in May 1997 it had a manifesto commitment: 'We will seek to end unjustifiable discrimination wherever it exists, for example, we support comprehensive enforceable civil rights for disabled people against discrimination'. With equal opportunities as a policy theme, disability rights issues were transferred from the Department of Social Security to the Department for Education and Employment, and Alan Howarth became the disability-rights minister.
To give disabled people the rights it said they deserved, the government announced that there would be a Disability Rights Commission. Howarth appointed a task force which he was to chair, to advise on its setting up and duties. Like the National Disability Council, it has a majority of disabled people among its members, and on neither body is there anyone experienced in the field of building design, building construction or building management. In the late-July 1998 government reshuffle, Howarth was moved to the Department of Culture. By then two of his batches of papers on the dda had been issued, and the third was ready to go.
In the 9 June press release, headed 'Further rights decision gives huge boost to disabled people', Howarth warned building owners: 'They will have until 2004 to prepare but when the dda is fully brought into force, service providers who have not removed physical obstacles to disabled people, where such changes would be reasonable, could be in breach of the law'. The implication was that they would keep on the right side of the law if they took his advice, and this was disingenuous; Howarth had no plans to tell them exactly how they would be able to avoid breaching the law and being taken to court by disabled people. And he went on to assert 'They will not be required to do anything unreasonable'. Again disingenuous: what disabled complainants could claim to be reasonable, and then convince the courts was reasonable, could involve works and expenditure which the service provider felt to be thoroughly unreasonable.
On 21 July the government issued a White Paper with proposals on the role and functions of a Disability Rights Commission; new legislation will be needed for its establishment. With the majority of commissioners being disabled people, the drc will, the paper says, provide information on good practice for Part 3 purposes; it will prepare and review codes of practice for Part 3, and it will set up the independent conciliation service which will act in disputed 'reasonable provision' cases.
On 30 July the National Disability Council issued proposals for a code of practice and regulations for the 'access' provisions in Part 3 of the dda. These are a revision of the March 1996 proposals, but the proposals for regulations cover only first-phase provisions, those to do with auxiliary aids and services. Further consultation on regulations to support the second phase of the remaining rights (the access-to-buildings rights) will, we are told, be conducted 'nearer the time', ie nearer to 2004. An important statement in the code of practice proposals would seem, however, to apply to both phases. It reads: 'The duty [of a service provider] to make reasonable adjustments is a continuing duty owed to disabled people at large. Service providers should keep the duty constantly under review in the light of their experience with disabled people wanting to access their services. In this respect it is an evolving duty, and not something that needs simply to be considered once and once only, and then forgotten.'
Clearly, the National Disability Council wants to rule out a section- 21 compliance mechanism. The implications are disturbing. First, with regard to any relatively new building which when constructed complied with the Part M regulation, compliance with Part M is legal certification that reasonable provision has been made for disabled people to gain access to and to use the building. Does the National Disability Council therefore propose to set current law aside in order to decree that service providers have a continuing and evolving duty to make further 'reasonable provision'?
Next, with regard to other existing public buildings, in anticipation of the full enforcement of Part III of the dda, many businesses have been commissioning access audits of their buildings, and in response to auditors' recommendations have been altering them with the aim of achieving compliance with dda requirements. They deserve to have compliance certificates, and without them will have no guarantee that they have insured themselves against the challenges of determined disabled protesters.
For the generality of existing buildings and alterations to them there is no straightforward means of securing section 21 compliance. The proposed bs access standard will not be serviceable; noting that the financial status of service providers will be a factor in determining what constitutes 'reasonable provision', there is no way that it could reliably cover all possible conditions and circumstances. Instead, compliance could effectively come by extending Part M to cover 'access' alterations to existing buildings; this would be problematical but not impracticable. The National Disability Council might not, however, be keen to encourage detr to take that course.
Come the day in 2004 when Part 3 of the dda is brought fully into force, the effects of having no section 21 compliance mechanism could be alarming. As an activist friend said to me recently: 'When we're off the leash, we'll be out there fast'. Hotel buildings could be at the top of targeting lists, with sports stadia, restaurants, pubs, department stores, railway stations, airport buildings, museums and art galleries also being vulnerable. As could architects' offices. Many historic buildings which are open to the public or where a service is provided to the public will be at risk; pressed by disability activists who insist that access rights must be paramount, local authorities responsible for the conservation of Grade II buildings could be persuaded to grant listed building consent for alterations they would previously not have countenanced.
Since the dda was enacted in 1995, the government has always recognised that the adjustments-to-buildings provisions in Part 3 would be exceptionally difficult to deal with. Three years later, nothing constructively purposeful has been done about them. Building owners, building managers and architects are not being well treated. And the government, in its determination to deliver comprehensive access rights to disabled people, does not have even-handedness in mind.
Selwyn Goldsmith, himself a severely disabled person, is the author of Designing for the Disabled - the New Paradigm published by Architectural Press.