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Accessibility: The New Legislation
Published online by Cambridge University Press: 31 July 2008
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The concept and terminology of ‘accessibility’ have in recent years become very fashionable. This is partly a reflection of a gradually increasing awareness of the desires, needs and aspirations of all sorts of groups within society that were in the past insufficiently taken into account or else completely ignored. So with women, children, the elderly, those of particular races or nationalities, those of different religions (or denominations) or none, those of particular lifestyles or sexual orientations—each has been gradually recognised, and brought into the mainstream of society. Thus, for example, we now take it for granted that equal facilities should generally be afforded for men and women—but it is not so long since this was far from universal.
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References
1 The author is a barrister in the chambers of Robin Purchase QC in the Temple. This article is based on a talk given at one of the Society's London Lectures, in Autumn 2002.Google Scholar
2 John 3: 16. See also, for example, Matt 28: 19, and Acts 11: 18.Google Scholar
3 Leaving aside the theologically tricky question of how those of very limited mental incapacity can ‘believe in’ anything.Google Scholar
4 John, 10: 10.Google Scholar
5 Re Holy Cross, Pershore [2001] 3 WLR 1521, (Worcester Cons Ct.).Google Scholar
6 For detailed guidance on the Act as a whole, see Disability Discrimination: Law and Practice (Doyle, Brian J, 4th edn, Jordan, 02 2003);Google Scholar and Disability Discrimination: The Law and Practice (Declan O'Dempsey and Andrew Short. 1st edn. FT Law & Tax, Sweet & Maxwell, 1996), now somewhat out of date.Google Scholar
7 Disability Discrimination Act 1995: Code of Practice: Goods, Facilities, Service and Premises (produced by the Disability Rights Commission, under section 53A(1) of the 1995 Act: brought into force on 27 May 2002 by SI 2002/720—available from TSO, £13.95)—referred to in the remainder of this paper simply as the Code of Practice.Google Scholar
8 Under the Disability Rights Commission Act 1999 (contact details: Disability Rights Commission. 7th Floor, 222 Gray's Inn Road, London, WCIX 8HL; Tel 020–7289–6111; web-site www.drc-gov.org).Google Scholar
9 The provision of new churches has been for many years and still is governed by the Chronically Sick and Disabled Persons Act 1970. Section 4 of that Act (as amended by section 6 of the Disabled Persons Act 1981) requires as follows: Any person undertaking the provision of any building or premises to which the public are admitted, whether on payment or otherwise, shall, in the means of access both to and within the building or premises, and in the parking facilities and sanitary conveniences to be available (if any), make appropriate provision for the needs of members of the public visiting the building or premises who are disabled. In more detail, the erection of new buildings, and extensions to existing ones, is the subject of Part M of the Building Regulations 1991 (Access and Facilities for Disabled People). An Approved Document was issued in 1992, and revised in 1999; a further revised edition was issued in draft in August 2002. These set out a number of useful guidelines for such detailed matters as the dimensions of toilets for those in wheelchairs, and the maximum lengths of ramps—which are equally applicable when planning alterations to existing buildings.Google Scholar
10 (2) For the purposes of this section and sections 20 and 21— (a) the provision of services includes the provision of any goods or facilities: (b) a person is “a provider of services” if he is concerned with the provision, in the United Kingdom, of services to the public or to a section of the public; and (c) it is irrelevant whether a service is provided on payment or without payment. (3) The following are examples of services to which this section and sections 20 and 21 apply— (a) access to and use of any place which members of the public are permitted to enter; … (f) facilities for entertainment, recreation or refreshment;… (g) the services of any profession or trade, or any local or other public authority.Google Scholar
11 Code of Practice, paragraph 5.49.Google Scholar
12 Re Holy Cross, Pershore [2002] Fam 1. [2001] 3 WLR 1521. (2000) 6 Ecc LJ 86. 19 CCCC No 35, Worcester Cons Ct.Google Scholar
13 Re Dorchester Abbey (2002) 7 Ecc LJ 105. Oxford Cons Ct. 7 October 2002. unreported.Google Scholar
14 See note 30 below.Google Scholar
15 (1) It is unlawful for a provider of services to discriminate against a disabled person— (a) in refusing to provide, or deliberately not providing, to the disabled person, any service which he provides, or is prepared to provide, to members of the public; (b) in failing to comply with any duty imposed on him by section 21 in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service; (c) in the standard of service which he provides to the disabled person or the manner in which he provides it to him; or (d) in the terms on which he provides it to him.Google Scholar
16 (1) For the purposes of section 19, a provider of services discriminates against a disabled person if— (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified. (2) For the purposes of section 19, a provider of services also discriminates against a disabled person if— (a) he fails to comply with a section 21 duty imposed on him in relation to the disabled person; and (b) he cannot show that his failure to comply with that duty is justified.Google Scholar
17 (1)Where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides, or is prepared to provide, to other members of the public, it is his duty to take such steps as it is reasonable, in all the circumstances of the case, for him to take in order to ensure to change that practice, policy or procedure so that it no longer has that effect. (2) Where a physical feature (for example, one arising from the design or construction of a building or the approach or access to premises) makes it impossible or unreasonably difficult for disabled persons to make use of such a service, it is the duty of the provider of that service to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to— (d) provide a reasonable alternative method of making the service in question available to disabled persons. … (4) Where an auxiliary aid or service(for example, the provision of information on audio tape or of a sign language interpreter) would— (a) enable disabled persons to make use of a service which a provider of services provides, or is prepared to provide, to members of the public, or (b) facilitate the use by disabled persons of such a service, it is the duty of the provider of that service to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to provide that auxiliary aid or service.Google Scholar
18 1999 SI No 1191.Google Scholar
19 For the purposes of section 21(2) of the Act, the following are to be treated as physical features (whether permanent or temporary)— (a) any feature arising from the design or construction of a building on the premises occupied by the provider of services; (b) any feature on the premises occupied by the provider of services or any approach to, exit from, or access to such a building; (c) any fixtures, fittings, furnishings, furniture, equipment or materials in or on the premises occupied by the provider of services; (d) any fixtures, fittings, furnishings, furniture, equipment or materials: (i) brought on to premises other than those occupied by the provider of services, by or on behalf of the provider of services; (ii) in the course of providing services to the public or to a section of the public; (iii) for the purpose of providing such services; (e) any other physical element or quality of land comprised in the premises occupied by the provider of services.Google Scholar
20 Code of Practice, para 5.49.Google Scholar
21 Re Holy Cross, Pershore [2002] Fam 1. [2001] 3 WLR 1521. (2000) 6 Ecc LJ 86. 19 CCCC No 35, Worcester Cons Ct.Google Scholar
22 See note 7 above.Google Scholar
23 Widening the Eye of a Needle: Access to Church Buildings for People with Disabilities—John Penton. 2nd edn, 2002, Church House Publishing (£ 10.95). See also Disability Discrimination Act 1995: Taking Account of its Implications for the Fabric of Churches and Cathedrals: Advisory Note by the Council for the Care of Churches (CCC) and the Cathedrals: Fabric Commission—draft issued April 2001; final version expected early 2003.Google Scholar
24 See e.g. Open to All: A commitment to a Church accessible to every one (Revd Andrew Bryant and Dr Gillian Reynolds, Diocese of Lichfield, 1999; reissued by Diocese of Guildford, 2001); Open for All (Diocese of Carlisle, Board for Social Responsibility, 2002); and Everyone—Together! A Parish resource pack on disability (Diocese of Liverpool. Board for Social Responsibility). The author is grateful to James Behrens for supplying copies of these. No doubt there are others.Google Scholar
25 Through the Roof, Global House, Ashley Avenue, Epsom, Surrey, KT18 5AD (tel. 01732–749955). They produce in particular various specialist materials, as well as the comprehensive Churches for All pack. See their web-site: (www.throughtheroof.org)Google Scholar
26 See e.g. Designing for Accessibility: an Introductory Guide (Tessa Palfryman, CAE, 2000); Access to the Historic Environment: Meeting the Needs of Disabled People (Lisa Foster, Donhead Publishing, 1997);Google ScholarBuildings for All to Use: Good Practice Guidance for Improving Existing Public Buildings for People with Disabilities (Sylvester Bone, Construction Industry Research and Information Association (CIRIA). 1996): and Easy Access to Historic Properties (English Heritage, 1995).Google Scholar
27 The DRC web-site (www.drc.gov.uk) provides a useful set of links to other organisations.Google Scholar
28 Code of Practice, paras 5.42, 5.43.Google Scholar
29 Code of Practice: paras 5.4 to 5.9 (practices, policies and procedures), and paras 5.10 to 5.30 (auxiliary aids and services).Google Scholar
30 See note 19 above.Google Scholar
31 Re Dorchester Abbey (2002) 7 Ecc LJ 105. Oxford Cons Ct.Google Scholar
32 Code of Practice, paras 5.38, 5.39.Google Scholar
33 Disability Discrimination (Providers of Services) (Adjustment of Premises) Regulations 2001 (SI 3253), reg 3(2).Google Scholar
34 An amendment to the Planning and Compensation Bill currently before Parliament is seeking to deal with this.Google Scholar
35 PPG 15, Planning and the Historic Environment, para 3.28.Google Scholar
36 Nutmeg House, 60 Gainsford Street, London, SEI 2NY (Tel. 020–7357–8182: web-site www.cae.org).Google Scholar
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