When the duty is different

What associations must do under equality law is explained in the Equality and Human Rights Commission guide Your Rights to Equality: Associations, clubs and societies.

Associations must make reasonable adjustments for disabled people in their selection processes and in how members, associate members and guests (and prospective members and guests) access their services and enjoy their benefits and facilities.

The aim of reasonable adjustments is to make sure that disabled people are able to join an association or use its services as far as is reasonably possible to the same standard usually offered to non-disabled people.

An association does not just have to think about reasonable adjustments for disabled people who are already members, associate members or guests, but also to disabled people who are:

• seeking or might wish to become members, or
• are likely to become guests.

This means the association must think in advance about what disabled people with a range of impairments might reasonably need, such as people who have a visual impairment, a hearing impairment, a mobility impairment or a learning disability.

If it is the physical features of a building the association occupies or is using that put disabled people at a substantial disadvantage, the association must either:

• make reasonable adjustments to avoid the disadvantage, or
• find a reasonable alternative way of providing members, associate members and guests (and potential members and guests) with the same access to membership and to its services.

Sometimes a reasonable adjustment may involve providing disabled people with an alternative way of using the service, which involves some level of inconvenience or segregation. However the best kind of reasonable adjustment is on which enables disabled people to access the service in much the same way as non-disabled people. Indeed, if there is an adjustment which can reasonably be made which avoids segreation or inconvenience, then an adjustment which entails segregation or inconvenience may not be considered a reasonable adjustment at all.

Where meetings take place in a member’s or associate member’s home, then reasonable adjustments do not have to be made to physical features to make it accessible for a member who is a disabled person and for whom the physical features of the meeting place present a barrier to their attending the meeting.

But it may be a reasonable adjustment to hold the meeting at an accessible venue.

For example:

A cycling club has 30 members and no premises of its own. Instead members meet in the leader’s house once a year for their AGM. This has no suitable access for a disabled member of the club, an amputee who uses a wheelchair. (The member uses a specially adapted tandem when cycling.) As a reasonable adjustment, the club decides to hold its meetings in a local sports hall which has suitable access.

Even if this is not a reasonable adjustment taking into account all the circumstances of the association, such as its size and resources, the association may want to consider whether as a matter of good practice it should change where it meets to an accessible venue.

The duty to make reasonable adjustments applies to landlords and managers of rented premises or premises which are available to rent. This may include a landlord, a letting agency, a property management company, a management or residents’ committee of a block of flats, and any other person who, in practice, has control over how the premises are let or managed. In this guide, these people are referred to as ‘controllers of the premises’.

The letting of both commercial premises and houses for domestic use (subject to some exceptions) are covered. Letting includes sub-letting, and the granting of contractual licences to occupy premises (as opposed to an interest in the property which is granted by a lease). However, it does not include private sales (called private disposals in the Act) provided that an estate agent has not been used and no advert published. Similarly, it does not apply if the landlord is simply renting a room or rooms in a house with room for six people or less where the landlord or a relative or partner are still living. This is called the small premises exemption.

The duty to make reasonable adjustments in relation to the letting of premises is different from the usual duty to make reasonable adjustments relating to services.

First, it is not anticipatory. The duty only arises if the controller of the premises is requested to make an adjustment by a person to whom the premises are let or who wishes to rent the premises, or someone on their behalf. The request may not necessarily be made formally and the landlord should presume that they are under an obligation to make a reasonable adjustment if it is reasonable to assume that a request has been made.

For example:

A landlord is speaking to a prospective tenant on the telephone to arrange a meeting to sign a tenancy agreement. During the conversation, the tenant explains that they are visually impaired and find the print in the tenancy agreement too small. The tenant is identifying an impairment and it is likely that it would be reasonable to regard this as being a request for an auxiliary aid, such as a tenancy agreement in an alternative format. The tenant does not have to request a particular format for the landlord to have to consider an adjustment.

Second, there are just two requirements. These are:

• Providing auxiliary aids and services.
• Changing provisions, criteria or practices, including (once premises have been let) changing a term of the letting. For example, a ‘no dogs’ term in a lease entered into by a disabled person who uses an assistance dog.

There is no requirement to make any changes which would consist of or include the removal or alteration of a physical feature, which includes:

• any feature arising from the design or construction of a building
• any feature of any approach to, exit from or access to a building
• any fixtures or fittings in or on premises
• any other physical element or quality.

Physical features do not include furniture, furnishings, materials, equipment or other items of personal property.

Changes are unlikely to be treated as consisting of or including the alteration of a physical feature where they have only an incidental effect on a physical feature.

For example:

Attaching something to a physical feature, such as a wall, with a screw is unlikely to amount to an alteration of the physical feature. However, something more significant, such as installing a concrete ramp between a step and a path, is likely to amount to an alteration of a physical feature.

Things like the replacement or provision of any signs or notices, the replacement of any taps or door handles, the replacement, provision or adaptation of any doorbell or door entry system, changes to the colour of any surface (such as a wall or a door, for example) do not count as physical features, so the duty to make reasonable adjustments could require changes to them.

The same tests apply when deciding if an adjustment is a reasonable adjustment:

• how effective the change will be in assisting the tenant or family member who needs the adjustment
• whether it can actually be done
• the cost
• the controller’s resources and size.

Although a controller of premises is not required to alter physical features, there are specific rules about when a controller of premises must agree to tenants themselves making alterations to physical features of rented homes, and these are explained in the Equality and Human Rights Commission guide Your Rights to Equality: Housing In future, there may also be specific rules about the process to be followed when requests are made for alterations to shared areas or ‘common parts’ of buildings and this guidance will be updated to reflect these changes.