DDA and M building regs?

[benny1970]

Hello all,

 

Can somebody help me. I was in a restaurant the other day and because the toilets were upstairs and being in wheelchair I could not use the toilets. I complained stating about the DDA 2004 making premises accessible. They came back to me saying that building M regs applies and that they got 10 years from 2004 before they do anything. They are a multinational company. What is the law on this?

 

Thanks

[my-spirit-soars-free]

The DDA talks about "reasonable" adjustment. "Reasonable" to those of us who are crosslegged is a rather more urgent "reasonable" than it is to the guy in a posh office with the key to the executive toilet.

 

This one annoys me on a regular basis, the large burger bars in town centres seem to be regular offenders, they seem to have a policy of having the loos upstairs.

[benny1970]

Does the building regs exclude them from the DDA 2004? Is disable toilet 1995 act or 2004?

[benny1970]

the excuses I had so far building reg we are exempt for 10 years, go toilet elsewhere, you are not at a disadvantage etc This time I planning on action!

[my-spirit-soars-free]

Just looked at Schedule M, it states that they don't have to alter a building for ten years after building it/extending it etc. Have a look at page 7 of schedule M (left hand side, near the bottom):

 

http://www.planningportal.gov.uk/england/professionals/buildingregs/technicalguidance/

 

Not that it makes much difference, "reasonable" is a vague term, and a lot of businesses will argue that spending cash they have not got is not reasonable, not in times of recession, etc ... when the owner has his brand new Porsche parked round the back.

Edited June 26, 2010 by my-spirit-soars-free
To put in a link that actually works

[benny1970]

hello,

 

Are having disable toilets for the disable covered under the DDA 1995 or 2004. I would thought that was a reasonable adjustment. I am also deaf and was unable to communicate with the staff as they have no inductive loop system for the deaf or any other aids.

[my-spirit-soars-free]

It certainly can be a reasonable adjustment, if there is space. It isn't always - thinking of our village coffee shop, they have a single, tiny loo, shared by staff and customers. It will probably not be a "reasonable" adjustment for them unless they are having building work done anyway, when stretching their loo might be possible.

 

I would argue that having an induction loop system would be reasonable, as you can get portable, pretty cheap versions of those, and the staff could just use it when required. For that one, if you ring the human rights commission, they will give you a template letter to send outlining why you believe the company have broken the DDA, and "inviting" them to behave in future

[Bookworm]

I can't open the link, I get a blank page.

 

Top of my head however, even if they don't have to do things in the next years, I would have thought it would only apply if they had made disability adjustments then, meaning they don't have to upgrade to other adjustments for 10 years. If they did work in 2004 and didn't make disability adjustments then, I would have thought they would have been in breach there and then.

 

Imagine otherwise, every single comapny could have some building work done however minor, and then put their hands up and say "sorry guv, don't have to make it disabled compatible for another 10 yrs!". I don't think so somehow, or it is the hell of a loophole!!!

 

Costs in time of recession are irrelevant under the DDA. Disabled peole are still disabled in the recession, they don't get relief from their disability, so that doesn't wash. "reasonable" adjustment means literally what is possible or not. See my post in the Vodafone discrimination thread, I gave some examples. (long post, so don't wan t to repeat myself, lol).

 

Venice is a perfect example: It is one of the least disabled-friendly places, because everyhwere you have ancient buildings, historical this and that, the whole place is a living museum and very, very hard to access if you have a disability (bridges everywhere in particular of course, but also narrow 3, 4 storeys buildings with winding staircases). However, even there, where possible, they are putting up stairlifts on the more recent bridges, ramps on the side of others etc, and the newest bridge over the Grand Canal will have (still being built when I was there in February) a ramp/lift thing to help cross over without using the stairs. It may make going round more tortuous, as not all bridges can be adapted, but at least, it is making the city more accessible. A lot of the hotels now have converted rooms on the downstairs floor so that people can stay there, etc etc...

[my-spirit-soars-free]

As far as I know "reasonable" does have an element of price built into it - a small business does not have to have a lift installed, a major one does - it is not reasonable to expect a small bookshop to have to bear the costs of a lift. As far as I know, it is even being considered "reasonable" for some very large companies to only put lifts in for their giant superstores when they are refurbishing them anyway - Halfords have told me that it is their policy only to put lifts in when they refurbish, that they cannot afford more and that as far as they are concerned that is the end of it.... oh, and in my local store it is only bikes and bike parts that are upstairs, so if I need those I can't be disabled. (Obviously my mistake, I did not realise that my being in a wheelchair meant my son could not use a bicycle bell!). I rang up the human rights commission about that one, and they confirmed that a policy of phased implementation would probably be "reasonable", as the DDA would not expect a company to risk its future with the cost.

 

If costs did not come into it we could have a field day with the London Underground, as so many of their stations are not accessible - a personal bugbear of mine, when I wanted to take the kids to the science museum I could not get there, in the end they gave me a staff parking space for the day.

 

The phrasing in schedule M is something like "if the building work that was done was in accordance with the schedule M that was around then it will still be OK for ten years and you don't have to change it". I suspect that your interpretation may well be right, and it may mean that only the actual adaptations are covered - but something tells me that the companies hiding behind it have enough solicitors to argue that their building works did not actually break schedule M, so they are covered - and by the time it ever gets to court we would be broke, old, and the ten years would have expired anyway.

[Bookworm]

Sorry, I should have been clearer regarding costs. I didn't mean small business v corporation, it's obvious that the local newsagent can't be expected to refurbish the whole outfit for the one wheelchair occupant in the village. My comment had to do with the "there's a recession, I can't afford it" part. Bearing in mind that a lot if not all of the work will be able to be written off against tax anyway, that excuse simply doesn't wash.

[my-spirit-soars-free]

Sorry, I should have been clearer regarding costs. I didn't mean small business v corporation, it's obvious that the local newsagent can't be expected to refurbish the whole outfit for the one wheelchair occupant in the village. My comment had to do with the "there's a recession, I can't afford it" part. Bearing in mind that a lot if not all of the work will be able to be written off against tax anyway, that excuse simply doesn't wash.

 

 

All of the work can be written off against tax - but on my small business that just means I pay for 75% of the cost, not all of it.

 

All I can say is what the human rights commission said to me, which is that a phased implementation on cost grounds would probably be deemed to be reasonable, as the shareholders have rights too, as do the people working for the business. Think of Woolworths, MFI, Adams - all big chains we all thought were well able to afford any changes that were needed.

 

The problem is the definition of "reasonable". To me it is "reasonable" when I am cross legged that I should be able to use the staff loo, for instance. To the staff, it is not, they have confidential information posted up on the walls of the changing room and would need ten minutes to take everything down. My reasonable, as a person who can't buy a bicycle bell for my son, is not the same reasonable as the business managers who has already spent thousands of pounds putting lifts in stores... that is why the human rights commission offer an arbitration service, to try to match definitions of "reasonable". The other point the human rights commission have made to me is that if they lean on, say, a department store, that provides loos but does not have to, the department store can get round the problem by closing the loos for everyone. Halfords may well be in the same boat, that closing the bike repair/spares section upstairs could be cheaper than complying, which is not what we want to achieve - I want to be able to buy a bell, so waiting 3 years for the lift, and letting the staff play "go fetch", may be a better option, much as I hate it.

 

Personally, I think the law is pretty weak, as "reasonable" is so vague, and any court case is likely to go the way of the side with the best legal time.

[Allwood]

Large stores that have a restaurant and or cafeteria within them are legally bound to have toilet for people to use.

 

I seem to remember from years ago that premises with less than 25 employed by them they do fall within the DDA. My memory could be wrong of course or it could have been amended since then.

 

Kings Cross underground has an ongoing programm since the big fire in 1987 and it is still not finished. They have only on lift at street level for passengers. It is so big now as it has become an international station. You have to walk what seems like miles to get to your correct station.

 

Also the bus stops in London there is always work being done around them and the stops are out of use then, which is dreadful for people with disabilities having to get to the next stop. Also sometimes these stops are not replaced taken away altogether. Why??

Edited June 27, 2010 by Allwood

[benny1970]

Hello,

 

I am going to write to them and argue that a toilet accessible to disable people is a raesonable adjsutment. I am also going to say them thinking that the M building regulation does not excused them from making other reasonable adjustment! For example auxiallry aids for the deaf. I could not understand what they were saying so could not order. A loop sytem for the deaf which they have in banks and shop is very efficient and cheap to install.

 

Can a service provider use building regulation not for providing toilets to the disable but the ablebody? Any pointers?

Edited June 27, 2010 by benny1970

[my-spirit-soars-free]

Your best bet is to contact your local councils planning department, if you wander in there they are remarkably helpful and likely to give you all sorts of useful information. They will be able to look up whether the business in question even had any work done within the time period required, and will certainly know whether there are any special requirements within your area that will affect the ability of a business to alter the layout of the premises. It will strengthen your position to be able to say "funny how the building regs chappies don't seem to think that applies to you".

[benny1970]

Thanks for the tip! I have been looking more and more into it and the M building regs does not exempt a service provider from making reasonable adjustments. In their case they have made none whatsoever since 2004 when they moved in. Furthermore they have had a number of refits etc since 2004 but no reasonable adjustments whatsoever. The fact is I could not order snack and drinks as they have no loop system. The loop system also cut out background noise which is a problem for a deaf person. In their letter they stated they are exempt from making reasonable adjustments. I am arguing the loop is a reasonable adjsutment under the 1995 and possibly the toilet?? plent of room down stairs. I am gettin to the point maybe take legal action?

[my-spirit-soars-free]

Before you take legal action, talk to the human right commission.

 

They have template letters you can send, to show you mean action and it also means that you phrase things correctly if you do have to take it further, and they also have an arbitration service, where they will talk to the service providers on your behalf.

 

Given that you actually want to force them to comply, you might be better off going down that route.

 

As far as I know, from what the Human rights commission have said to me, you can only take action on a lack of provision that affects you personally.

 

 

EHRC - Home - their helpline numbers are at the top of the page. They seem to have taken the textphone numbers off the main page though, and now show a video of someone signing that tells you how to contact them if using a phone is a problem:

 

YouTube - Contact the Equality and Human Rights Commission (BSL)

[benny1970]

Hello,

 

yes I have already spoken to the commission and wrote them a letter as advised. the loop system and no toliets on the ground floor both affected me. I was told by the commission that they would find it difficult to argue by not making reasonable adjustment to me. Also I was told that the reasonable adjustments should of benn in place before a disable person raised a complaint.

[my-spirit-soars-free]

Did you get a reply to your letter? If you take the reply back to the human rights commission they will help you further.

 

I would agree that a ground floor toilet and an induction loop system are pretty basic adjustments... and I am now felling pretty bad that I just crossed my legs last time I took my daughter for a burger, I should have done something about it.

[benny1970]

yes burger bars are teh worst offenders...they get away with it as nobdoy complains! They can afford to make reasonable adjustments if they can afford millions on advertising!

[marmacc]

Hi,

 

I think I may be able to offer something on this one. My full time job is advising service providers on this issue and I think they may be over simplifying the issue.

 

In relation to Exemption for meeting Approved Document M

 

Firstly, a point about about the Building Regulations and their relationship to the DDA. The building regulations are legal requirements for new build and certain other circumstances. The legal requirement is very subjective and is contained soley within the green box at the front of the document. The rest of it is Approved Document, which represents one way of satisfying the legal requirements but it is open to people applying for building regulations approval to demonstrate they have met the green box through approaches which differ from the Approved Document.

 

The following are all extracts from Appendix B of the Code of Practice for service providers 2005, published by the good old DRC! I have added emphasis as I see relevant:

 

----------------------------------------------------------------

The Approved Document M is not mandatory,

however, and it is open to a developer to comply

with Part M in other ways. In addition, only certain

features are addressed in the Approved

Document. Where a building complies with Part M

any alternative treatment of those features must

enable any disabled person to use the building

with the same degree of ease as would have been

the case had those features (or aspects of those

features) accorded with those set out in the

Approved Document. Therefore a service provider

who provides services from such a building is

unlikely to have to make alterations or

adjustments to those specific features if 10 years

or less have passed since their construction or

installation (see paragraph 9 below). The position

is similar in Scotland (see paragraph 14 below).

A building with features which do not accord with

the effective edition of the Approved Document (authors note: the approved doc, not the regulations)

may have been accepted as meeting the

requirements of Part M. If the feature is one which

is covered by the Approved Document (for

example, a lift) then, provided it enables any

disabled person to access and use the building

with the same degree of ease as would have been

the case had the feature accorded with the

Approved Document, it is unlikely to be

reasonable for a service provider to have to make

adjustments to that feature if 10 years or less have

passed since its installation or construction. This

is because the Regulations are not intended to

deter people from adopting effective innovative or

alternative design. Where a feature is one which is

not covered by the Approved Document (for

example, signage) then under the DDA the service

provider may still have to make adjustments to

that feature in order to comply with its duties

under the Act.

The overall effect of the Regulations (those

relating to private clubs, and service providers and

public authorities carrying out functions) is that,

for a period of 10 years(Note since construction), a service provider in

England and Wales need not remove or alter any

aspect of a physical feature of a building that

accords with the relevant objectives, design

considerations and provisions in the Approved

Document M. At the date of publication of the

Code, the effective edition of the Approved

Document M will be either the 1992, 1999 or 2004

edition. For building works where the Building

Regulations applied, the effective edition will be

the version which applied in meeting those

Building Regulations. For building works where

the Building Regulations did not apply, the

effective edition will be that which was in force

when those works commenced.

The exemption relates only to the particular

aspect of the physical feature in question that

accords with the provisions of the Approved

Document M in England and Wales or with the

relevant Technical Standard or functional

standards and guidance in the Technical

Handbook in Scotland and not to the building as a

whole.

----------------------------------------

OK, context set. The building was existing at the time of refurbishment and therefore they can refurbish it without having to provide all of the facilities (ground floor accessible WC) that would be required in a new build and still achieve building regulations. The regulations only apply to the works which are being proposed and can not necessarily force retropective works upon areas which are not having works undertake.

However, the 2004 version of Approved doc M, 5.10, b states that a unisex accessible WC should be provided as close as possible to the entrance or waiting area of the building. Therefore, I would argue that they do not have a physical feature which accords with approved document M; hence the exemption is not in effect.

Finally, I think a number of people raised the 'reasonable' issue. The RBS just lost a case where they have been orderd to install a lift (its Allen Vs RBS, makes for interesting reading) estimated at £200K to install.

Cost is one of 13 factors listed in the code of practice; disruption, availability of finance, benefit to users (cant remember the rest off the top of my head). I believe the most fundamental issue here is the 'anticpatory' nature of the service provider duties. In 1995 services providers were made aware that they had to make reasonable adjustment by 2004. The onus is on service providers to 'anticpate the needs of disabled people'. Having a wheelchair accessible WC is clearly within the bounds of what service providers can anticpate.

If they were to argue it is too expensive, they would have to do so in the context of their available finance over the past 9 years. Unless they are a small chain I think they would struggle hear. Particularly as they have apparently been through a number of refurbs at which time they could have installed provision cost effectively and without disruption.

I do have some sympathy with service providers. They often get their advice from none specialists who really don't understand what they are talking about.

It would be great to see another high profile case, but if you want an easier life you might get someone like sheffield law centre involved (the legal team behind the RBS case). They would probably recommend agreeing a joint expert, someone from the National Register of Access Consultants (NRAC) and then argue as I have attempted to set out above.

I hope this all makes sense and is of some use!

bye.

[zippygbr]

 

This one annoys me on a regular basis, the large burger bars in town centres seem to be regular offenders, they seem to have a policy of having the loos upstairs.

 

i think this is for 2 reasons

 

1. to maximise space on the ground floor - so they can have some tables etc there as well as the floor space in front of the counters to cope with busy times

 

2. to try and prevent 'casual' use of the toilets , especially those places who have had problems with junkies using their loos to shoot up

[marmacc]

any update on this?

[marmacc]

Nearly a year and half since this one - any news? settled or heading for the press?