Question 1

Stair Lift Installation

Accepted Answer

At a recent meeting of the Board of Directors the issue of installation of stair lifts was raised as we have an ageing population. The only access to the blocks(3) is via steps into the buildings and flats are on three floors. Directors want to develop a policy about the installation of stair lifts that complies with legal obligations but also takes account of potential liability for maintenance and repair as well as any liability arising from the use or installation of such apparatus. Can you advise please? The FRPA responds: Before writing out a policy let alone progressing the matter through to installation, the board need to think extremely hard about how this is going to work in practice. Firstly, having reviewed the lease it is not clear that the landlord is entitled to undertake "improvements" at the development. If the leases do not permit this, the landlord may need to consider varying all the leases at the development to allow for such an expense to be recovered through the service charge. If not, the landlord could be felt in a position of installing the lift but not being able to recover the costs of installation, maintenance etc, through the service charge. Secondly, how will the stair lift impact on the service charges each of the tenant's pays? Again, having reviewed the lease, the lease does not make provision for the recovery of costs associated with "stair lifts" or anything similar. The leases would therefore need to be varied to allow any such recovery. Thirdly, lease variations can be undertaken in one of two ways: (1) by agreement of all the parties or (2) by making an application to the Tribunal for a variation order. The grounds of making an application to the Tribunal for the variation of leases are quite limited to where the lease is "defective" in someway. The test is an objective test so for example, just because it would be "nice" to have something included in the lease does not necessary make the lease defective. For example, a reserve fund in a lease would be a "nice to have" however any application to the Tribunal may well fail on these grounds as without the reserve fund the lease is still workable. If an application to the Tribunal does not have merit then arguably, the only option is varying the lease by agreement of all the parties (including any lenders). Will this be possible? How many tenants are on board? Is this option feasible? Finally, once all of the above has been sorted, the board will need to consider the consultation requirements pursuant to Section 20. Subsequent Question: Thank you for the response which is most helpful. Can I just extend the question to ask if there is any further advice about our potential duties under the Disability Discrimination Act and also additionally issues that might arise should a shareholder request permission to install a stair lift. We have held in the past that we could not approve such a request for liability and other reasons. However with the increasingly aged population this is becoming more pressing. The FPRA responds: The Disability Discrimination Act 1995 (as amended 2005) makes it unlawful for service providers to discriminate against disabled people in certain circumstances. The Disability Discrimination Act, as applied to residential blocks of flats, is a grey area because this law, the DDA, is not fully ‘tested’ and is at present being formed by case law. Advising therefore on complex law that was formed for the broad premise of non-discrimination and is still going through various legal stages, is not easy. However, there are pointers that will make dealing with the issues raised a little easier to incorporate into policies. The requirements of the DDA have been implemented in stages:

In 1996, it became unlawful for service providers to treat disabled people less favourably for a reason related to their disability.
Since 1999, service providers have been required to make ‘reasonable adjustments' for disabled people by providing extra help or making adjustments to the way that services are provided.
From October 2004, service providers have had to make ‘reasonable adjustments' to the physical features of their premises to overcome physical barriers to access.
In April 2005 the Disability Discrimination Act 2005 (DDA) received Royal Assent. This extended the definition of disability to include people with HIV/AIDS multiple sclerosis and some forms of cancer. It also strengthened tenant's rights in relations to the making of reasonable alterations.

It must be remembered that the DDA and the accompanying guidance provide a framework but do not address all and every situation. Situations will arise that have not been contemplated or for which the guidance does not provide a model or solution. In such cases it is possible that there will be a lack of agreement between the firm and the disabled person, perhaps a pressure group or even the Disability Rights Commission. In such circumstances it is possible that a landlord may be taken to Tribunal in order to establish what the law requires. As set out above, the third and final phase of the Disability Discrimination Act 1995 (‘the DDA’) came into force in October 2004, bringing with it far reaching implications for all service providers. However, from 4th December 2006, with the introduction of the Code of Practice on access of the Disability Rights Commission (DRC), all managers, landlords including RMC’s are now subject to new duties regarding disabled persons who may require assistance or alterations to enjoy their homes. The new duties DO impact on common parts of blocks of flats. DEFINITION OF DISABILITY Under the legislation, “disability” is a physical or mental impairment which has a substantial or long term (more than 12 months) adverse effect on a person’s ability to carry out normal day-to-day activities. The definition includes HIV, cancer, mental illness and diabetes. FORMS OF DISCRIMINATION The Act identified two main forms of discrimination. The first is called the “giving of less favourable treatment” and the second is the “failure to make reasonable adjustments” if requested by a disabled person. “Less favourable treatment” arises if the disabled person would not have received that treatment or service but for his/her disability, for example, a landlord refusing to allow a leaseholder with an attention deficit disorder to use the communal gardens / lounge. The “duty to make reasonable adjustments” arises only if an adjustment is requested. From the email it is not clear whether or not the request to make a reasonable adjustment has been made? The duty is not anticipatory however but once a request is made (which need not be in writing) the landlord/manager is under a duty to take reasonable steps to address the matter complained off by the disabled person. The DDA has identified three main types of adjustments which apply to residential premises:

Auxiliary aids and services i.e. the replacement of taps/door handles
Policies, procedures and practices; and
Change to a term of a letting or lease.

It is this most likely to be the first and last adjustment that is of particular relevance to our scenario. DUTY TO MAKE CHANGE TO LEASE TERMS If a term in a lease makes it unreasonably difficult or impossible for a disabled person to enjoy the flat or the benefits and facilities in a block, a duty to adjust may arise. As we can see from above, the Landlord is under a duty once a request has been made to make a reasonable adjustment. In addition, another factor the landlord will need to take into consideration is the costs

Are the costs of undertaking the “reasonable adjustments” permitted through the service charge?
If the costs of undertaking the adjustment can be put through the service charge, would those costs be “reasonable”?
Who has the request to make the reasonable adjustments come from? The sub-tenants or the leaseholder themselves? For example, if the request to make the reasonable adjustment has come from a leaseholder who is renting out their property to sub-tenants, it may been that the landlord take the view that the costs of undertaking the reasonable adjustment should be borne wholly or partly by the leaseholder on the grounds that it is the leaseholder that is “benefitting” from the adjustments as the adjustments will mean their tenants will remain in the rented property.

In dealing with the issue you will also need to consider your tenants. Are they, in the main, in an older age group? We all, by the age of seventy years have a seventy per cent chance of acquiring an impairment. It is advisable to incorporate preparation for change into wider plans. The Landlord should be aware of the duty to not give less favourable treatment to any of the leaseholders i.e. the refusal to permit the leaseholder to use to the communal areas or their property because of the disability. All of the above need to be balanced against either each. MANAGEMENT OF PREMISES As we have already seen from the above, the DDA makes it unlawful for a person managing any premises and/or the landlord to discriminate against a disabled person occupying those premises:

In the way they permit the disabled person to make use of any benefits or facilities

For example it would be unlawful for a disabled tenant's use of benefits and facilities, such as a communal garden, to be restricted to specified times because of a concern that other tenants may feel uncomfortable with their presence.

By refusing to permit the disabled person to make use of any facilities

For example, it is likely to be unlawful for a child with attention deficit disorder to be refused access to communal garden because of the objections of other tenants.

By evicting the disabled person or subjecting them to any other detriment.

For example, it would be unlawful for a tenant who has recently been diagnosed with AIDS, who is not in breach of his tenancy, to be given a week's notice to leave the house. Any other detriment would include harassing disable tenants physically or verbally or failing to prevent them being subjected to harassment by others. CAN LESS FAVOURABLE TREATMENT EVER BE JUSTIFIED? The DDA does recognise that there are situations where what appears to be less favourable treatment of a disabled person can be justified. These are: 1. On Health or Safety grounds Less favourable treatment on these grounds will only be justifiable if it is reasonably believed that the treatment is necessary in order not to endanger the health or safety of any person, including the disabled person. For example it may be justifiable, for a landlord to refuse to rent out a fourth floor flat to a single person with severe mobility problems because of the risk to the disabled persons' health and safety in the event of a fire. Their lack of mobility would significantly hinder their ability to vacate the building using the stairs on their own. 2. Incapacity to contract The less favourable treatment of a disabled person may also be justified if it is reasonably believed that the disabled person is incapable of entering into an enforceable agreement or of giving an informed consent. For example, it could be acceptable to refuse to rent out a property to a person with a learning disability, who is incapable of understanding the legal obligations contained within the contract and cannot therefore give informed consent. 3. Treatment necessary in order for the disabled person or other occupiers to use a benefit or facility. For example a landlord could reasonably refuse to allow a disabled tenant with a learning disability to use the shared laundry facilities in a block of flats if the tenant frequently breaks the washing machines, because they do not understand the instructions.

Question 2

Stair Lift Installation

Accepted Answer

At a recent meeting of the Board of Directors the issue of installation of stair lifts was raised as we have an ageing population. The only access to the blocks(3) is via steps into the buildings and flats are on three floors. Directors want to develop a policy about the installation of stair lifts that complies with legal obligations but also takes account of potential liability for maintenance and repair as well as any liability arising from the use or installation of such apparatus. Can you advise please? The FRPA responds: Before writing out a policy let alone progressing the matter through to installation, the board need to think extremely hard about how this is going to work in practice. Firstly, having reviewed the lease it is not clear that the landlord is entitled to undertake "improvements" at the development. If the leases do not permit this, the landlord may need to consider varying all the leases at the development to allow for such an expense to be recovered through the service charge. If not, the landlord could be felt in a position of installing the lift but not being able to recover the costs of installation, maintenance etc, through the service charge. Secondly, how will the stair lift impact on the service charges each of the tenant's pays? Again, having reviewed the lease, the lease does not make provision for the recovery of costs associated with "stair lifts" or anything similar. The leases would therefore need to be varied to allow any such recovery. Thirdly, lease variations can be undertaken in one of two ways: (1) by agreement of all the parties or (2) by making an application to the Tribunal for a variation order. The grounds of making an application to the Tribunal for the variation of leases are quite limited to where the lease is "defective" in someway. The test is an objective test so for example, just because it would be "nice" to have something included in the lease does not necessary make the lease defective. For example, a reserve fund in a lease would be a "nice to have" however any application to the Tribunal may well fail on these grounds as without the reserve fund the lease is still workable. If an application to the Tribunal does not have merit then arguably, the only option is varying the lease by agreement of all the parties (including any lenders). Will this be possible? How many tenants are on board? Is this option feasible? Finally, once all of the above has been sorted, the board will need to consider the consultation requirements pursuant to Section 20. Subsequent Question: Thank you for the response which is most helpful. Can I just extend the question to ask if there is any further advice about our potential duties under the Disability Discrimination Act and also additionally issues that might arise should a shareholder request permission to install a stair lift. We have held in the past that we could not approve such a request for liability and other reasons. However with the increasingly aged population this is becoming more pressing. The FPRA responds: The Disability Discrimination Act 1995 (as amended 2005) makes it unlawful for service providers to discriminate against disabled people in certain circumstances. The Disability Discrimination Act, as applied to residential blocks of flats, is a grey area because this law, the DDA, is not fully ‘tested’ and is at present being formed by case law. Advising therefore on complex law that was formed for the broad premise of non-discrimination and is still going through various legal stages, is not easy. However, there are pointers that will make dealing with the issues raised a little easier to incorporate into policies. The requirements of the DDA have been implemented in stages:

In 1996, it became unlawful for service providers to treat disabled people less favourably for a reason related to their disability.
Since 1999, service providers have been required to make ‘reasonable adjustments' for disabled people by providing extra help or making adjustments to the way that services are provided.
From October 2004, service providers have had to make ‘reasonable adjustments' to the physical features of their premises to overcome physical barriers to access.
In April 2005 the Disability Discrimination Act 2005 (DDA) received Royal Assent. This extended the definition of disability to include people with HIV/AIDS multiple sclerosis and some forms of cancer. It also strengthened tenant's rights in relations to the making of reasonable alterations.

It must be remembered that the DDA and the accompanying guidance provide a framework but do not address all and every situation. Situations will arise that have not been contemplated or for which the guidance does not provide a model or solution. In such cases it is possible that there will be a lack of agreement between the firm and the disabled person, perhaps a pressure group or even the Disability Rights Commission. In such circumstances it is possible that a landlord may be taken to Tribunal in order to establish what the law requires. As set out above, the third and final phase of the Disability Discrimination Act 1995 (‘the DDA’) came into force in October 2004, bringing with it far reaching implications for all service providers. However, from 4th December 2006, with the introduction of the Code of Practice on access of the Disability Rights Commission (DRC), all managers, landlords including RMC’s are now subject to new duties regarding disabled persons who may require assistance or alterations to enjoy their homes. The new duties DO impact on common parts of blocks of flats. DEFINITION OF DISABILITY Under the legislation, “disability” is a physical or mental impairment which has a substantial or long term (more than 12 months) adverse effect on a person’s ability to carry out normal day-to-day activities. The definition includes HIV, cancer, mental illness and diabetes. FORMS OF DISCRIMINATION The Act identified two main forms of discrimination. The first is called the “giving of less favourable treatment” and the second is the “failure to make reasonable adjustments” if requested by a disabled person. “Less favourable treatment” arises if the disabled person would not have received that treatment or service but for his/her disability, for example, a landlord refusing to allow a leaseholder with an attention deficit disorder to use the communal gardens / lounge. The “duty to make reasonable adjustments” arises only if an adjustment is requested. From the email it is not clear whether or not the request to make a reasonable adjustment has been made? The duty is not anticipatory however but once a request is made (which need not be in writing) the landlord/manager is under a duty to take reasonable steps to address the matter complained off by the disabled person. The DDA has identified three main types of adjustments which apply to residential premises:

Auxiliary aids and services i.e. the replacement of taps/door handles
Policies, procedures and practices; and
Change to a term of a letting or lease.

It is this most likely to be the first and last adjustment that is of particular relevance to our scenario. DUTY TO MAKE CHANGE TO LEASE TERMS If a term in a lease makes it unreasonably difficult or impossible for a disabled person to enjoy the flat or the benefits and facilities in a block, a duty to adjust may arise. As we can see from above, the Landlord is under a duty once a request has been made to make a reasonable adjustment. In addition, another factor the landlord will need to take into consideration is the costs

Are the costs of undertaking the “reasonable adjustments” permitted through the service charge?
If the costs of undertaking the adjustment can be put through the service charge, would those costs be “reasonable”?
Who has the request to make the reasonable adjustments come from? The sub-tenants or the leaseholder themselves? For example, if the request to make the reasonable adjustment has come from a leaseholder who is renting out their property to sub-tenants, it may been that the landlord take the view that the costs of undertaking the reasonable adjustment should be borne wholly or partly by the leaseholder on the grounds that it is the leaseholder that is “benefitting” from the adjustments as the adjustments will mean their tenants will remain in the rented property.

In dealing with the issue you will also need to consider your tenants. Are they, in the main, in an older age group? We all, by the age of seventy years have a seventy per cent chance of acquiring an impairment. It is advisable to incorporate preparation for change into wider plans. The Landlord should be aware of the duty to not give less favourable treatment to any of the leaseholders i.e. the refusal to permit the leaseholder to use to the communal areas or their property because of the disability. All of the above need to be balanced against either each. MANAGEMENT OF PREMISES As we have already seen from the above, the DDA makes it unlawful for a person managing any premises and/or the landlord to discriminate against a disabled person occupying those premises:

In the way they permit the disabled person to make use of any benefits or facilities

For example it would be unlawful for a disabled tenant's use of benefits and facilities, such as a communal garden, to be restricted to specified times because of a concern that other tenants may feel uncomfortable with their presence.

By refusing to permit the disabled person to make use of any facilities

For example, it is likely to be unlawful for a child with attention deficit disorder to be refused access to communal garden because of the objections of other tenants.

By evicting the disabled person or subjecting them to any other detriment.

For example, it would be unlawful for a tenant who has recently been diagnosed with AIDS, who is not in breach of his tenancy, to be given a week's notice to leave the house. Any other detriment would include harassing disable tenants physically or verbally or failing to prevent them being subjected to harassment by others. CAN LESS FAVOURABLE TREATMENT EVER BE JUSTIFIED? The DDA does recognise that there are situations where what appears to be less favourable treatment of a disabled person can be justified. These are: 1. On Health or Safety grounds Less favourable treatment on these grounds will only be justifiable if it is reasonably believed that the treatment is necessary in order not to endanger the health or safety of any person, including the disabled person. For example it may be justifiable, for a landlord to refuse to rent out a fourth floor flat to a single person with severe mobility problems because of the risk to the disabled persons' health and safety in the event of a fire. Their lack of mobility would significantly hinder their ability to vacate the building using the stairs on their own. 2. Incapacity to contract The less favourable treatment of a disabled person may also be justified if it is reasonably believed that the disabled person is incapable of entering into an enforceable agreement or of giving an informed consent. For example, it could be acceptable to refuse to rent out a property to a person with a learning disability, who is incapable of understanding the legal obligations contained within the contract and cannot therefore give informed consent. 3. Treatment necessary in order for the disabled person or other occupiers to use a benefit or facility. For example a landlord could reasonably refuse to allow a disabled tenant with a learning disability to use the shared laundry facilities in a block of flats if the tenant frequently breaks the washing machines, because they do not understand the instructions.

Stair Lift Installation

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