Accessibility relates both to how buildings are designed and built and also to how they are operated, managed and maintained. The guidance in Part M of the Building Regulations 1999 and in the Department for Education and Employment (dfee) 1997 Constructional Standards is thus outweighed by the requirements of the Disability Discrimination Act (dda), whether or not construction is taking place.
The definitions of disability under the dda are broad. The act defines disability as a physical and/or mental impairment which has a substantial and long-term adverse effects on a person's ability to carry out normal day-to-day activities.
One of the first sections of the dda to have come into force, in July 1996, is Part II. It is concerned with discrimination against both job applicants and employees, with discrimination defined as 'less-favourable treatment'. The dda requires employers to adjust policies, procedures, and also the physical features of premises (taking 'reasonable' steps), so that the disabled persons are not at 'a substantial disadvantage' to the able-bodied.
The provisions of the Act under Part IV in relation to 'education' came into force in November 1996. The new rights in this context that the dda gives to disabled people have effect in three main areas:
1) The employment of staff. Employers, including governing bodies, leas, colleges of further education, and universities, must not unjustifiably discriminate against current employees or job applicants on the grounds of disability, and may have to make 'reasonable' adjustments to their employment arrangements and/or premises if these substantially disadvantage a disabled person.
2) Providing non-educational services to the public. Governing bodiesties, must not unjustifiably discriminate against disabled people when providing non-educational services. From this month they are required: to take steps to change policies, procedures and practices which make it hard for disabled people to use a service; to provide auxiliary aids or services enabling disabled people to use a service; and provide reasonable alternatives for dealing with physical barriers. By 2004 they will have to take reasonable steps to remove, alter, or provide reasonable means of avoiding physical features that make it difficult for a disabled person to use a service.
3. Publishing information about arrangements for disabled pupils and students.
Governing bodies in their annual reports to parents must explain: their admission arrangements for disabled pupils; how they will help such pupils gain access; and what they will do to make sure they are treated fairly. Colleges and universities are required to make an annual return to the Audit Commission, setting out their current position in relation to dda provisions, also and reporting how their policies and measures meet the act.
Part III of the dda, also in force from this month, makes it unlawful to discriminate against disabled people by:
providing a worse standard of service to disabled people than it provides to able bodied people
offering service on worse terms.
Service providers must also make adjustments similar to those outlined above for universities and colleges.
From the end of 2004, service providers will have to take reasonable steps to remove, alter or provide means of avoiding physical features that make it impossible or unreasonably difficult for disabled people to use their services and facilities.
The 'reasonable steps' to be taken may well involve the alteration of the physical fabric of 'premises'. It is important therefore to use the time available until 2004 to identify what physical features will have to be dealt with in this way, how to deal with them, and determine at what stage before the end of that year.
Implementation of Part III of the dda will clearly be complex and will give rise to many issues of interpretation. These complexities, and the lead times needed for such sweeping changes, have meant that in the specific case of 'barriers', the Government has provided a phasing-in period of 10 years for their removal or elimination. However, where such barriers can be shown to be discriminatory in future in relation to the employment of an individual, or in relation to the provision of goods or services from this month onwards, a barrier may need to be removed with the reasonable minimum of delay applicable in the circumstances.
It is very important to note that while the dda relates to the design of new and substantially extended buildings, as does Part M of the Building Regulations, it also relates to the refurbishment of buildings, and the management and operation of existing premises and facilities. Given the very broad definitions contained in the act, it now means that the relevant environmental standards arising from the application of the dda extend considerably further than those set out in the Part M Approved Document.
It is vital to ensure that the overall and detailed design, and the specifications applicable to any new or altered building in public use, are appraised carefully in relation to the provisions of the act. Only if this is done will the owners, operators and managers of new buildings minimise the real risk of having to alter their facility upon its completion.
With existing premises, there is a need to carry out an accessibility audit to establish what conditions actually exist and then, in the Accessibility Audit Report, to identify what steps can 'reasonably' be undertaken to eliminate discriminatory barriers. Indeed, until 2005, the view of the courts or tribunals in relation to many premises issues may be that commissioning an accessibility audit in itself constitutes sufficient 'reasonable' action.
John Penton is a consultant architect specialising in issues of disability and ageing