§ (".—(1) This section applies where—
- (a) an employer or trade organisation ("the occupier") occupies premises under a lease;
- (b) but for this section, the occupier would not be entitled to make a particular alteration to the premises; and
- (c) the alteration is one which the occupier proposes to make in order to comply with a section 6 duty or section 15 duty.
§ (2) Except to the extent to which it expressly so provides, the lease shall have effect by virtue of this subsection as if it provided—
- (a) for the occupier to be entitled to make the alteration with the written consent of the lessor;
- (b) for the occupier to have to make a written application to the lessor for consent if he wishes to make the alteration;
- (c) if such an application is made, for the lessor not to withhold his consent unreasonably; and
- (d) for the lessor to be entitled to make his consent subject to reasonable conditions.
(3) In this section—
lease" includes a tenancy, sub-lease or sub-tenancy and an agreement for a lease, tenancy, sub-lease or sub-tenancy; and
sub-lease" and "sub-tenancy" have such meaning as may be prescribed.
§ (4) If the terms and conditions of a lease—
- (a) impose conditions which are to apply if the occupier alters the premises, or
- (b) entitle the lessor to impose conditions when consenting to the occupier's altering the premises,
§ the occupier is to be treated for the purposes of subsection (1) as not being entitled to make the alteration.
§ (5) Part I of Schedule (Premises occupied under leases) supplements the provisions of this section.").
§ The noble Lord said: My Lords, in moving this amendment, I shall also speak to Amendments Nos. 28 and 78. In doing so, I apologise for their length and degree of complexity. I am sure that it is within the grasp of noble Lords opposite.
§ The House will recall that we touched on this matter during Report stage when I mentioned the issue of employers who lease their premises and the implications for the duty of reasonable adjustment. The status of terms and covenants in leases is an important matter. I said that we would be giving the matter our careful consideration and make our position clear at Third Reading, when we would table any necessary amendments.
§ There are obligations on employers under Part II to make reasonable adjustments. There can also be obligations in leases which for entirely non-discriminatory reasons prevent or restrict alterations 1016 to the premises. As the Bill stands, the relationship between these obligations is very uncertain. It is unclear whether Clause 9 would render void a term in a lease, and if so when and to what extent; or whether the prohibition in the lease would prevail by rendering the adjustment "not reasonable". An employer in his own premises would have to make reasonable adjustment to those premises where appropriate, but the position of an employer who leases the premises is not obvious.
§ It would be inappropriate to leave this position as it stands. These three amendments make the Government's policy intention clear. We propose through these amendments that, where the employer-tenant would be under a duty to alter the premises but would be prevented from doing so by the lease, he would be under a duty to seek the consent of the landlord. The landlord would be under a duty not to withhold consent unreasonably. This approach would ensure that the lease will not operate to frustrate the duty of adjustment. It also has the advantage of protecting the landlord where he has a legitimate objection to allowing an alteration to premises. Amendment No. 78 deals with circumstances in which it would and would not be reasonable for a landlord to consent to adjustments. These would need to be established by use of a regulation-making power, including any conditions which the landlord might attach to his consent. We will consult on the use of such power. Provision is made for enforcement of the duty through industrial tribunals. The provisions that I have mentioned will also apply to trade organisations covered by Part II of the Bill.
§ The same approach will be taken under the right of access to goods and services in Part III of the Bill. Service providers will be under the same duty as employers to seek their landlord's consent before making any adjustments to their premises. Landlords will be under the same duty not to withhold it unreasonably.
§ Perhaps I ought to add that the new provisions do not cover the clauses that deal with the sale or letting of premises to disabled people themselves. These provisions are aimed mainly at the rented accommodation sector and will largely involve similar landlords; for example, one letting a number of flats in a shared house. In case there is any doubt, let me reiterate that there will be no duty on a landlord to make or consent to changes to his property when a disabled person is seeking to become his tenant. However, the Bill (at Clause 23) will ensure that any prejudicial term within an agreement which, for example, sought to prevent the sub-letting of a property to disabled people, would be unlawful and therefore made void.
§ These amendments clarify the relationship between the duty of reasonable adjustment on employers and the implications for landlords. As I have said, these amendments provide a fair balance between the needs of disabled people and the requirements on employers and landlords. And, we will ensure that disabled people, employers and landlords are among those consulted on the regulations. I commend these amendments to the House. I beg to move.1017
§ Baroness Hollis of Heigham
My Lords, we welcome these amendments. They are a very useful clarification of the law. The Government are quite rightly looking at the situation where an employer or a user of premises has behind him a landlord, and therefore where the duty, obligation and responsibility of making an adjustment might fall when there is a clash of contractual loyalties and responsibilities.
Does this not put into context the amendment moved by my noble friend Lord Carter at the start of our debates today? Is this not the mirror opposite of the situation that he outlined; namely, a disability organisation might wish to rent or lease a property on behalf of disabled people and there was that third party, exactly as in the amendments outlined by the Minister a few minutes ago? The Government nonetheless rejected that amendment while proposing this. Will the Minister comment on that inconsistency?
§ Lord Henley
My Lords, I find the logic of the noble Baroness extraordinarily tortuous. I do not believe that there is any connection whatsoever. However, if she wishes to make sophist-like points of that kind that is entirely open to her, although this is Third Reading. I am glad that in general she welcomes these amendments. I apologise for their length. As those of us who once studied law will know, land law is necessarily complicated. The noble Baroness will understand that the purpose behind the amendments is relatively simple.
§ Lord Carter
My Lords, I was about to make the same point as my noble friend. It is not sophistry but an interesting example of the Government facing both ways. These amendments, which we welcome, raise an interesting point that I should like to have clarified. In Committee I mentioned a situation in which I was involved. We have an office which employs disabled people. At the time we took the lease one of the conditions was that the landlord, the owner of the building, should provide an access ramp, which he was willing to do. However, the local highways authority created certain difficulties. The point which arose in the debate, which was answered by the noble Lord, Lord Inglewood, was that in that case, broadly speaking, the planning Acts would take precedence over the requirements of this Bill. If I have it right, it now appears that in view of these clauses the Bill will take precedence over the normal law of property. It would be helpful if the Minister could confirm my understanding of the situation.
My final question is whether, if the building is listed, that is a sufficient or reasonable ground to refuse consent.
§ Earl Russell
My Lords, I should like to ask a question for clarification which is related to paragraph 3 of Amendment No. 78. That deals with regulations that may make provision as to circumstances in which a landlord is deemed to have withheld his consent, withheld his consent unreasonably or acted reasonably in withholding his consent. Can the Minister say what is likely to be in those regulations?
§ Lord Henley
My Lords, to deal with the latter point last, I prefer to write to the noble Earl in detail on those regulations. However, I can assure him that we intend to consult all of the relevant people in due course because we want to ensure that they are right.
I go back to the points raised by the noble Lord, Lord Carter. Obviously, if the building was listed and there were concerns about making alterations, it would be perfectly reasonable to refuse consent on those grounds. As to the planning point, I believe that that goes very wide of the amendments that we are discussing. The planning controls will still apply. I believe that in the example which the noble Lord put to me at an earlier stage, or perhaps outside the Chamber, the landlord, tenant and employees were at one in what they could do but there were problems caused by the local authority as both owner of the pavement and planning authority. Obviously, the planning regulations would have to apply. In a case of that kind one would have to continue to put pressure on the local planning authority to deal with these matters in planning terms. I hear the noble Baroness say that I am exactly right. It is gratifying to be told by the noble Baroness that I am correct. I thought that there were others who advised me on these matters, but I take no point.
§ I believe that I have taken enough interventions on this amendment. We are considering this matter at Third Reading. I beg to move.
§ On Question, amendment agreed to.
§ 6.15 p.m.
§ Lord Mackay of Ardbrecknish moved Amendment No. 20:
§ After Clause 15, insert the following new clause—