The Equality Act 2010 - Implications for Property

The majority of the provisions in the Act came into force on 1 October 2010.  One of the main aims of the Act is to consolidate existing discrimination legislation. Its provisions apply to tenancies created before and after its implementation. The protected characteristics are those protected by the Act being age, disability, gender re-assignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief (or lack of), sex and sexual orientation.  Not all of the protected characteristics are protected against all types of discrimination, harassment or victimisation prohibited by the Act.   There are certain situations where the prohibitions are excluded or applied more narrowly in particular situations.  This e-mailer is a general overview only. For more detailed guidance please contact me to discuss.

The Act has specific implications for property owners, managers and occupiers in the following situations:-

Disposing of Property

A person who has the right to dispose of a property must not discriminate, harass or victimise another person when he does so.   These prohibitions apply to disposals of both residential and commercial property.

An example of prohibited conduct when disposing of a property is a seller who offers their property to a prospective purchaser who is disabled at a higher price than they would offer it to a non disabled person because of the person’s disability. 

Giving Consent to Disposal of a Property

A person whose permission for disposal is required is usually a landlord, superior landlord or mortgagee.  The person whose consent is required must avoid discrimination, harassment and victimisation. These prohibitions apply to consent to disposal of both residential and commercial property. 

An example of a prohibited conduct is a landlord who refuses to permit a tenant to sublet a room because the proposed subtenant is disabled. 

Obligations of Managers of Premises

A person who manages premises must avoid discrimination, harassment and victimisation. A manager is usually a managing agent or firm of estate agents.   These prohibitions apply to both residential and commercial property. 

An example of prohibited conduct is a manager who responds more slowly to requests for maintenance because the tenant has a learning disability. 

Providing Good, Services and Facilities

The Act prohibits discrimination, harassment and victimisation by people who provide a service to the public or exercise a public function.    Service providers are under a duty to make reasonable adjustments to assist disabled people.

Making Reasonable Adjustments to Assist Disabled People

The Act imposes a duty to make reasonable adjustments in several different circumstances.  The extent of the duty varies in each of the situations where applied be it to existing tenanted properties, premises which are to be let, common parts in residential/mixed use buildings and the provision of services to the public.  Failure to comply with a duty to make reasonable adjustments is discrimination against a disabled person.  A duty to make reasonable adjustments can include up to 3 requirements:-

1. Changing how things are done
   where a provision, criterion or practice puts a disabled person at a substantial disadvantage the Act imposes a duty to take reasonable steps to avoid the disadvantage.
2. Changing a physical feature
   where a physical feature of a property puts a disabled person at a substantial disadvantage the Act imposes a duty to take reasonable steps to avoid the disadvantage.
3. Providing an auxiliary aid
   where a disabled person would be at a substantial disadvantage without an auxiliary aid the Act imposes a duty to take reasonable steps to provide the auxiliary aid.

When deciding whether an adjustment is reasonable you should consider how effective the change would be in assisting the disabled person, when the change can actually be made, the cost and the size of the organisation making the change and its resources.  The Act prohibits charging a disabled person for any reasonable adjustments that are required to comply with a duty unless the Act expressly permits charging for example, the landlord is permitted to require a disabled tenant to pay for changes to the common parts of a property. 

• Making reasonable adjustments to let premises.

 Only requirements 1 and 3 apply.

 Examples of requirements of a disabled person to adjust the terms of a letting may include  where a tenant with disabilities wants to modify the obligation in the tenancy agreement to  keep the garden properly tended. 

• Making reasonable adjustments to premises to let

 Only requirements 1 and 3 apply.

• Making reasonable adjustments to common parts

 The duty to make reasonable adjustments to common parts is a new duty that did not exist  under previous legislation.  It only applies to common parts of buildings that contain  residential units.  If the duty applies it only relates to making reasonable adjustments to the physical features of the common parts.  For the duty to apply the person who is responsible for the common parts must receive a request from a disabled resident asking for reasonable adjustments to be made to those common parts.  The request can only be made if the disabled person is suffering a substantial disadvantage in relation to their use of the common parts. If the landlord decides that it is reasonable to make changes then he must agree with the disabled person what their relative rights or responsibilities will be. It is always reasonable for the manager to insist that the disabled tenant agrees to pay the cost of the work and the cost arising from the work and the cost of re-instatement. 

Examples of changes to common parts that include changing the colour of the walls so that there is a greater contrast for blind people and permitting the installation of a stair lift. 

• Making reasonable adjustments and providing services for the public

Service providers must comply with all three requirements to make reasonable adjustments so that a disabled person is not put at a substantial disadvantage in accessing the service.  The duty is owed to disabled people generally so the service provider must anticipate the needs of disabled people and make reasonable adjustments. 

Examples of how the duty might affect property owners and occupiers who are service provides include providing hand rails to assist disabled users of a leisure centre or residential care home and installing a ramp.

Obligation to allow residential tenants to alter property

Section 190 of the Act sets out a procedure for disabled tenants of residential properties to apply for their landlord’s consent to make improvements to their property (rather than the common parts).