HL Deb 20 October 2004 vol 665 cc863-9

(1) The Disability Discrimination Act 1995 (c. 50) is amended as follows.

(2) After section 24 there is inserted—

"24A Discrimination in relation to associated premises

(1) 1t is unlawful for a controller of associated remises to discriminate against a disabled person—

  1. (a) who is a person to whom premises associated with the associated premises are let; or
  2. (b) who, although not a person to whom such premises are let, is lawfully under the letting an occupier of such premises.

(2) For the purposes of subsection (1), a controller of associated premises discriminates against a disabled person if—

  1. (a) a duty under section 24C is imposed on him by reference to the disabled person; and
  2. (b) he cannot show that failure to comply with the duty is justified (see section 24F).

(3) For the purposes of this section and sections 24B to 24D, a person is a controller of associated premises if he is—

  1. (a) a person with a legal or equitable interest in the associated premises; or
  2. (b) a person who manages the associated premises.

(4) For the purposes of this section and sections 24B to 24D—

  1. (a) "let" includes sub-let; and
  2. (b) premises shall be treated as let by a person to another where a person has granted another a contractual or other licence to occupy them.

(5) This section applies only in relation to associated premises in the United Kingdom.

24B ASSOCIATED PREMISES: EXCEPTIONS TO SECTION 24A(1)

(1) Section 24A(1) does not apply if—

  1. (a) the associated premises are, or have at any time been, part of the only or principal home of an individual who is a person by whom they are controlled; and
  2. (b) since entering into the letting to the disabled person—
    1. (i) the individual has not, and
    2. (ii) where he is not the sole person by whom the premises are let, no other person by whom they are let has,
    used for the purpose of managing the associated premises the services of a person who, by profession or trade, manages such premises.

2) Section 24A(1) does not apply if the associated premises are of a prescribed description.

(3) Section 24A(1) does not make unlawful any discrimination which—

  1. (a) is made unlawful by section 19 or any provision of Part 2; or
  2. (b) would be so made but for any provision made by or under this Act.

(4) Where the conditions mentioned in section 23(2) are satisfied, section 24A(1) does not apply.

(5) For the purposes of section 23, the "relevant occupier", means, in a case falling within section 24A(1), a controller of the associated premises, or a near relative of his; and "near relative" has here the same meaning as in section 23.

24C ASSOCIATED PREMISES: DUTIES FOR PURPOSES OF SECTION 24A(2)

(1) Subsection (2) applies where—

  1. (a) a controller of associated premises receives a request made by or on behalf of a person to whom premises associated with the associated premises are let;
  2. (b) it is reasonable to regard the request as a request that the controller give or secure consent for the disabled person to install or affix an adaptation or improvement in or to the associated premises;
  3. (c) the adaptation or improvement would—
    1. (i) enable a relevant disabled person to enjoy the premises let or the associated premises, (or both)
    2. (ii) enable a relevant disabled person to make use of any benefit, or facility, which by reason of the letting is one of which he is entitled to make use, or
    3. (iii) facilitate a relevant disabled person's enjoyment of the let premises or the associated premises or his making use of any such benefit or facility;
    but would be of little or no practical use to the relevant disabled person concerned if he were neither a person to whom the premises associated with the associated premises are let nor an occupier of them; and
  4. (d) the adaptation or improvement is to be undertaken by or on behalf of the disabled person at his own expense and subject to such reasonable conditions as the controller may require.

(2) It is the duty of the controller to take such steps as it is reasonable, in all the circumstances of the case, for him to take in order to secure consent to the making of the adaptation or improvement or, where he is the person from whom consent must be obtained, it is his duty not to unreasonably refuse such consent (but see subsection (6)).

(3) Subsection (5) applies where—

  1. (a) a controller of associated premises has a practice, policy or procedure which has the effect of making it impossible, or unreasonably difficult, for a relevant disabled person—
    1. (i) to enjoy the let premises or the associated premises, or
    2. (ii) to make use of any benefit, or facility, which by reason of the letting is one of which he is entitled to make use, or
  2. (b) a term of the letting has that effect,
and (in either case) the conditions specified in subsection (4) are satisfied.

(4) Those conditions are—

  1. (a) that the practice, policy, procedure or term would not have that effect if the relevant disabled person concerned did not have a disability;
  2. (b) that the controller receives a request made by or on behalf of a person to whom the premises associated with the associated premises are let; and
  3. (c) that it is reasonable to regard the request as a request that the controller take steps in order to change the practice, policy, procedure or term so as to stop it having that effect.

(5) It is the duty of the controller to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change the practice, policy, procedure or term so as to stop it having that effect (but see subsection (6)).

(6) For the purposes of this section, it is never reasonable for a controller of associated premises to have to give, or to take steps to secure, consent to an adaptation or improvement which would involve the removal or alteration of a physical feature which could not subsequently be replaced or re-altered.

(7) In this section, relevant disabled person, in relation to associated premises, means a particular disabled person—

  1. (a) who is a person to whom the premises associated with the associated premises arc let; or.
  2. (b) who, although not a person to whom such premises are let, is lawfully under the letting an occupier of such premises.

(8) For the purposes of this section, the terms of a letting of premises include the terms of any agreement which relates to the letting of the premises.

(9) This section imposes duties only for the purpose of determining whether a person has, for the purposes of section 24A, discriminated against another; and accordingly a breach of any such duty is not actionable as such.

24D ASSOCIATED PREMISES: VICTIMISATION OF PERSONS TO WHOM PREMISES ASSOCIATED WITH ASSOCIATED PREMISES ARE LET

(1) Where a duty under section 24C is imposed on a controller of associated premises by reference to a person who, although not a person to whom premises associated with the associated premises are let, is lawfully under such letting an occupier of those premises, it is unlawful for a controller of the associated premises to discriminate against a person to whom the premises associated with the associated premises are let.

(2) For the purposes of subsection (1), a controller of associated premises discriminates against a person to whom premises associated with the associated premises are let if—

  1. (a) the controller treats that person ("T") less favourably than he treats or would treat other persons whose circumstances are the same as T's; and
  2. (b) he does so because of costs involved in connection with taking steps to avoid liability under section 24A(I) for failure to comply with the duty.

(3) In comparing T's circumstances with those of any other person for the purposes of subsection (2)(a), the following (as well as the costs mentioned in subsection (2)(b) above) shall be disregarded—

  1. (a) the making of the request that gave rise to the imposition of the duty; and
  2. (b) the disability of each person who—
    1. (i) is a disabled person or a person who has had a disability, and
    2. (ii) is a person to whom the premises associated with the associated premises are let or, although not a person to whom such premises are let, is lawfully under the letting an occupier of such premises.

24E DEFINITION OF "ASSOCIATED PREMISES" AND "PREMISES ASSOCIATED WITH ASSOCIATED PREMISES"

(1) For the purposes of sections 24A to 24D above, "associated premises" and "associated with associated premises" have the meanings given in the following paragraphs of this section.

(2) Where a dwelling house is let to, or occupied by, a disabled person and that dwelling house forms part only of a building, "associated premises" constitute all remaining parts of that building, other than those parts specifically demised to the tenants of other dwelling houses, and in respect of which—

  1. (a) the disabled person has the right to pass in order to secure entry to or egress from his dwelling house (including lifts, stairs, corridors, balconies, reception areas and passageways);
  2. (b) the disabled person shares in common with others the right to use that part or parts for a particular purpose (including leisure amenities, laundry rooms, and underground car parks); or
  3. (c) the disabled person has some other reasonable need to enter or enjoy access to;
and shall further include any other land, beyond the confines of the building, which the disabled occupier is entitled to use (including paths and steps, communal gardens, courtyards and car parking areas) and which adjoin the building or are designed or intended to be used by residents of the building.

(3) Where a dwelling house is let to or occupied by a disabled person and that dwelling house forms part of a single scheme or development of such dwelling houses, "associated premises" constitute all other land comprised within the scheme or development other than that in the sole ownership or control of another resident of the scheme.

(4) "Associated premises" shall not include any highway.

(5) A dwelling-house is "associated with associated premises" if use of any "associated premises" is required for access to, or for the reasonable use and enjoyment of, that dwelling house or for the reasonable use and enjoyment of facilities which the occupier is entitled to use and enjoy with the dwelling house.

24F Associated premises: justification

(1) For the purposes of sections 24A(2) a person's failure to comply with a duty is justified only if—

  1. (a) in his opinion, a condition mentioned in subsection (2) is satisfied; and
  2. (b) it is reasonable, in all the circumstances of the case, for him to hold that opinion.

(2) The conditions are—

  1. (a) that it is necessary to refrain from complying with the duty in order not to endanger the health or safety of any person (which may include that of the disabled person concerned);
  2. (b) that the disabled person concerned is incapable of entering into an enforceable agreement, or of giving informed consent, and for that reason the failure is reasonable.

(3) Regulations may—

  1. (a) make provision, for purposes of this section, as to circumstances in which it is, or as to circumstances in which it is not, reasonable for a person to hold the opinion mentioned in subsection (1)(a);
  2. (b) amend or omit a condition specified in subsection (2) or make provision for it not to apply in prescribed circumstances;
  3. (c) make provision, for purposes of this section, as to circumstances (other than any for the time being mentioned in subsection (2)) in which a failure is to be taken to be justified.""

The noble Baroness said: My Lords, in moving this horrendously long amendment, I aim to be as brief as possible. It returns to the very important issue of enabling disabled people to make reasonable adaptations so they can get into their own home. I stress that this is a prodding amendment for the new disability Bill, not this Bill.

I moved a much shorter amendment in Committee, as recorded at col. 1416 on 16 September, which dealt solely with the disabled person's home, not the communal ground. I am glad that, following the agreement of the noble Lord, Lord Bassam, to my suggestion on this amendment, officers of the Disability Rights Commission are pursuing a meeting with ODPM and DWP officials.

I touched on the problem of the communal area in Committee at cols. 1417 to 1418, but the amendment did not address it. It is a complex issue to resolve—indeed, the DWP has said that it is too complex, although the issue itself is simple. At present, disabled people are totally without rights in respect of adaptations to communal areas. A key recommendation of the Joint Committee on the draft disability Bill was to create a specific provision preventing property managers unreasonably refusing consent for necessary adaptations to common parts. I believe that 80 per cent of calls to the DRC about problems of accessibility to dwellings are concerned with the communal areas. It can be as small as a handrail up some steps. There is no legal hook on which to hang a complaint.

I acknowledge that Amendment No. 184 represents a radical break with current land law, albeit limited to the area of disability access. It has been prepared by a leading QC and demonstrates that it is possible to devise a fair and workable way of addressing the legitimate rights of disabled people to get into their house while safeguarding the legitimate interests of property managers and others with an interest in the property. For instance, they could impose conditions such as all necessary work being at the disabled person's expense. Furthermore, all necessary work to reinstate the premises to its original form when the disabled person leaves could be at his or her expense as well. I stress that I am not asking the Government to accept the amendment; I am simply showing that this is one way of resolving the problem that is equitable.

The Minister in the other place whom we met yesterday was certainly understanding and sympathetic, while seeing this as a difficult area. I hope that the Minister here will be able to give an encouraging answer that the Government will seriously seek to resolve the problem. I beg to move.

Baroness Maddock

My Lords, my name is attached to the amendment, and I very much support the spirit in which it was moved. Given the good work that the noble Lords, Lord Rooker and Lord Bassam, have done in this area, I hope that they will be able to co-ordinate between departments to make sure that we try and address the issue. It is meaningless if we do all sorts of things to people's individual homes but they cannot get through the communal parts. I recognise that it is not easy, but I have every hope that the Minister will be able to pursue the matter across departments.

Baroness Wilkins

My Lords, I also strongly support this amendment and trust that the current cases I gave him from my own local authority of Hammersmith and Fulham have helped to convince him of the need for a change in the law.

Lord Rooker

My Lords, we certainly accept that there is a problem although I was pleased to hear the noble Baroness, Lady Darcy de Knayth, say that she did not want or expect the Government to accept the amendment.

It would be unfair to dissect the amendment. This is a complex area to deal with. If it was easy to deal with we would have dealt with it before—other governments would have done so in other housing legislation. What needs to be done in common parts of buildings for people with disabilities is difficult; there is no question about that. On the other hand, a solution has to be found.

This is a difficult area in which to legislate. One has to consider the rights of the person who owns the property, who may be different from the disabled person. Generally speaking it would be a different person, because we are talking about properties occupied by more than one household which have common parts. The views of other people who use the common parts may conflict and there would be a problem over the splitting of any necessary costs, which was referred to in the earlier debate by my noble friend Lord Bassam. There are practical issues, but I am not ruling out the amendment because of those. We accept the noble Baroness's point that common areas are not catered for by the provisions of the housing Acts and the landlord and tenant Acts we discussed in our Committee debate. But we do not think that this amendment would be an effective way of providing new rights.

As was concluded in the previous debate, this is a very complex area of law where the rights of different parties need to be balanced. We will give further thought to this matter—we are not walking away from it. While my noble friend Lord Bassam and I will take no credit for what happens, we will make sure that our words here are taken seriously in the Office of the Deputy Prime Minister and across other government departments. The matter is crucial and it is not down to just one department. These are commitments given by the Government to Parliament to see if we can get this matter right. It goes without saying that we will work with the Disability Rights Commission.

We are, of course, already putting significant new duties on landlords and managers of rented premises in the forthcoming disability discrimination Bill that will be introduced into your Lordships' House—changes that will make a real difference to disabled tenants and occupiers. Our priority undoubtedly must be to secure the passage of that Bill. At this point, we would not want consideration of new issues such as this one on common parts to deflect us from getting that quick passage. We want to ensure that those new duties are implemented properly and bedded down before imposing new duties. That is our priority. We do not expect consideration of the issues raised by this amendment to be completed in time either for this Bill or for the disability discrimination Bill. However, I make no bones about the fact that I would welcome further amendments on that Bill so that we can be tested on what the Government are doing across Whitehall. While we do not envisage dealing with this problem in that legislation, it would be barmy to say that these issues should not be raised during its passage because we could probably deal with them at a more civilised hour and have a little more time for contributions from all sides of the House.

I hope that that is classed as a positive response. It is certainly not in any way intended to be a bucket of cold water—far from it. That is accepted in the nature of the size of the amendment, let alone anything else. This is a complex problem which may require a complex solution. On the other hand, not every complex problem requires a complex solution. There may be a simple way out of this if we can find it.

Baroness Darcy de Knayth

My Lords, I would first like to thank the noble Baronesses, Lady Maddock and Lady Wilkins, for their strong support, and thank the Minister for his reply which was positive in parts—a curate's egg positive, perhaps. I appreciate what he has said. I would be interested at another time to hear him pick the amendment to pieces, but I realise that that is not appropriate at this hour. I think we dealt with the part about the landlord and other tenants. Anyway, I stress that if the provision were to be included in the Bill, it would be subject to the usual tests of reasonableness and practicality.

I am pleased that the Minister said that he would give the matter further thought and am very grateful that he will see that the departments work together over it with the DRC. I welcome his invitation to put down amendments to the new disability Bill. I am sure that there will be some, and hope that we shall be able to move forward on that matter in time. Thanking him very much for his reply, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.45 p.m.

Clause 188 [Local authority's right of first refusal]:

[Amendment No. 184A not moved.]

Clause 191 [Registered social landlord's right of first refusal]:

[Amendment No. 184B not moved.]

Clause 195 [Housing action trust's right of first refusal]:

[Amendment No. 184C not moved.]

Lord Rooker moved Amendments Nos. 185 and 186:

Before Clause 200, insert the following new clause—