Body Corporate responsibilities in relation to the Disability Discrimination Act

15 September 2008

Commissioner Innes recently received a request for his opinion on the responsibilities of a Body Corporate of a Class 2 building (apartment block) in relation to the DDA. The reply has been posted here for the information of other people and organisations interested.

Thank you for your letter in which you seek my view on a number of matters relating to the rights of people with a disability living in residential premises controlled by a Body Corporate (generally a Class 2 building) .

I am happy to provide you with my views but must stress that these views are my own, are not to be relied upon as legal advice and do not bind the Commission as a whole in decisions which might be made in particular matters including in relation to complaints.

There are a number of relevant aspects of potential application of the Disability Discrimination Act 1992 (Cth) (DDA) which I would like to comment on.

Access to premises

Section 23 of the DDA states:

(1) It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:

(a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or

(b) in the terms or conditions on which the first‑mentioned person is prepared to allow the other person access to, or the use of, any such premises; or

(c) in relation to the provision of means of access to such premises; or

(d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or

(e) in the terms or conditions on which the first‑mentioned person is prepared to allow the other person the use of any such facilities; or

(f) by requiring the other person to leave such premises or cease to use such facilities.

(2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability in relation to the provision of access to premises if:

(a) the premises are so designed or constructed as to be inaccessible to a person with a disability; and

(b) any alteration to the premises to provide such access would impose unjustifiable hardship on the person who would have to provide that access.

This section may apply in situations where one or more units within the block are available to the public on short term lease such as holiday lets or serviced apartments. In this situation if a person with a disability could not access the unit or common facilities available to all those residing in the block, such as a BBQ area, gym or the entrance area, a complaint of discrimination could be made.

There are a growing number of units in Class 2 buildings available as short term rental properties those responsible, whether it is the owner or Body Corporate, faces a liability for complaint if access is not provided.

Accommodation

Section 25 of the DDA states:

(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:

(a) by refusing the other person's application for accommodation; or

(b) in the terms or conditions on which the accommodation is offered to the other person; or

(c) by deferring the other person's application for accommodation or according to the other person a lower order of precedence in any list of applicants for that accommodation.

(2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person's disability or a disability of any of the other person's associates:

(a) by denying the other person access, or limiting the other person's access, to any benefit associated with accommodation occupied by the other person; or

(b) by evicting the other person from accommodation occupied by the other person; or

(c) by subjecting the other person to any other detriment in relation to accommodation occupied by the other person; or

(d) by refusing to permit the other person to make reasonable alterations to accommodation occupied by that person if:

(i) that person has undertaken to restore the accommodation to its condition before alteration on leaving the accommodation; and

(ii) in all the circumstances it is likely that the person will perform the undertaking; and

(iii) in all the circumstances, the action required to restore the accommodation to its condition before alteration is reasonably practicable; and

(iv) the alteration does not involve alteration of the premises of any other occupier; and

•  the alteration is at that other person's own expense.

(3) This section does not apply to or in respect of:

(a) the provision of accommodation in premises if:

(i) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside on those premises; and

(ii) the accommodation provided in those premises is for no more than 3 persons other than a person referred to in subparagraph (a)(i) or near relatives of such a person; or

(b) the accommodation is provided by a charitable or other voluntary body solely for persons who have a particular disability and the person discriminated against does not have that particular disability; or

(c) the provision of accommodation in premises where special services or facilities would be required by the person with a disability and the provision of such special services or facilities would impose unjustifiable hardship on the person providing or proposing to provide the accommodation whether as principal or agent .

While in the main section 25 relates to the direct relationship between landlords and tenants there is a situation in which I believe a Body Corporate may have some liability.

Part 2 (d) states that it is unlawful to refuse to permit someone to make alterations to their accommodation to allow for access so long as a number of conditions can be met (parts 2 (d) (i)(ii)(iii)(iv) and (v)).

Under this part if the landlord was willing to allow a tenant (at their own expense) to undertake necessary work, but the Body Corporate refused to allow the landlord to give permission or refused to allow the work to proceed a complaint of discrimination might be made against the Body Corporate under section 122 of the DDA which states:

122 Liability of persons involved in unlawful acts

A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2 or 3 of Part 2 is, for the purposes of this Act, taken also to have done the act.

There are of course situations in which proposed alterations might cause the owner an unjustifiable hardship or conflict with other regulations or laws such as the Building Code of Australia (BCA) or OH&S requirements. For example, it is my understanding that under the BCA, for safety reasons, a stairway has to be wide enough to have a minimum clearance beside a deployed platform lift to allow other pedestrians to pass by.

However, a Body Corporate subject to a complaint would have to justify their refusal by showing exactly how the BCA or OH&S requirements are in conflict with the proposed alterations. I do not believe that the absence of a Body Corporate by-law or the need to apply for development approval would justify refusal. These issues could be addressed by taking appropriate action to change the by-laws or make a development application.

While section 25 (2) refers to ‘accommodation occupied by that person' which some might interpret as referring to the inside of the unit occupied by that person my view is that a reasonable interpretation of that part would include the common areas including the path of travel from the entrance to that persons unit.

It would of course be up to the Federal Court to interpret the application of sections 25 and 122 in such a circumstance, but I am of the view that it may be possible to pursue such a claim.

 

Clubs and incorporated associations

Section 27 Clubs and incorporated associations is another part of the DDA where I believe there is clear liability for complaints against a Body Corporate refusing to provide access to the common areas used by an owner/occupier. Section 27 states:

(1) It is unlawful for a club or incorporated association, the committee of management of a club or a member of the committee of management of a club or incorporated association to discriminate against a person who is not a member of the club or association on the ground of the person's disability or a disability of any of that person's associates:

(a) by refusing or failing to accept the person's application for membership; or

(b) in the terms or conditions on which the club or association is prepared to admit the person to membership.

(2) It is unlawful for a club or incorporated association, the committee of management of a club or a member of the committee of management of a club or incorporated association to discriminate against a person who is a member of the club or association on the ground of the member's disability or a disability of any of the member's associates:

(a) in the terms or conditions of membership that are afforded to the member; or

(b) by refusing or failing to accept the member's application for a particular class or type of membership; or

(c) by denying the member access, or limiting the member's access to any benefit provided by the club or association; or

(d) by depriving the member of membership or varying the terms of membership; or

(e) by subjecting the member to any other detriment.

(3) Paragraph (2)(c) does not render unlawful discrimination where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the club or incorporated association.

(4) Neither subsection (1) nor (2) renders it unlawful to discriminate against a person on the ground of the person's disability if membership (however described) of the club or incorporated association is restricted only to persons who have a particular disability and the first‑mentioned person does not have that disability.

Assuming a Body Corporate is covered by the definition of ‘club or incorporated association' I believe it would be possible for a person with a disability to pursue a complaint of discrimination against the Body Corporate if it acted in a way that denied the member access to the benefits provided in common to other members.

So for example, if Body Corporate members enjoyed benefits such as access to a BBQ area or a swimming pool, but one member, because of their disability, could not get up the steps to enjoy those benefits that member could use this section to pursue a complaint of discrimination.

My view is that this same principle can be applied to the situation where a member of the Body Corporate required access through the entrance to the block of units to the front door of their unit.

If such a complaint were successful the Body Corporate may have responsibility to pay for the access and not the individual member. Alternatively the individual member might wish to make a contribution or pay for the alterations themselves.

Of course the Body Corporate might well have access to a defence of unjustifiable hardship, particularly if providing access required structural changes or conflicted with other laws, but again it would be for a court to make that determination.

Goods, services and facilities

Finally, section 24 states:

(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

(b) in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c) in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

(2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.

There are two ways this section might be used by a complainant. First if the accommodation in question were a service delivered by a Government or non-government organisation and a person eligible for the accommodation had a disability and could not access the service or facility.

Secondly, this section might also be used in situations where a Body Corporate or Strata Management body discriminated in the way in which it made a decision in relation to an issue that affects a person with a disability such as the provision of access.

While not a complaint under the DDA, the decision of the Queensland Tribunal in C v A is most relevant to this broader question of Body Corporate responsibilities towards its members.

This case involved a woman who lives in an apartment block (Class 2 building) and who because of a disability was not able to independently move around the common areas because the doors were too heavy for her to open.

The Tribunal found that the Body Corporate had a responsibility to ensure accessible paths of travel for its member. The Body Corporate was ordered to install automatic doors and pay the complainant $25,000 in compensation.

Summary

So in summary, a Body Corporate may find itself subject to a complaint of discrimination in a number of circumstances including:

• where one or more units within the block were available to the public for short term rent and access to the unit and common facilities was not available
• where it refused to allow an owner to allow a tenant to make alterations at their own expense (subject to certain conditions), or
• where it failed to ensure that all its members could enjoy all the benefits of membership, including access to common areas.

I have been advocating for this issue to be addressed through the yet to be finalised Access to Premises Standard.

My view is that the Premises Standard should include a requirement that all new Class 2 buildings (apartments and units) should be constructed in a way that allows for accessible paths of travel though the entrance to the front doors of the units on that entry level, to the front door of units on other levels where a lift is provided and to at least one of each area or facilities used in common by the residents of the apartment block.

This would result in a number of benefits. First developers and any Body Corporate could be sure they were addressing their potential liability, and secondly there would be a progressive improvement in sustainable housing stock to better meet the needs of people with a disability and our ageing population.

The issues raised by your questions will be of interest to others so I intend to publish this reply as an open letter on our website.

Yours sincerely

Graeme Innes AM

Human Rights Commissioner &

Disability Discrimination Commissioner

15 September 2008