Following some recent questions from our Landlord Insurance clients, we invited an expert in Access Audits to write a special guest post for us detailing the key things that residential landlords need to know when it comes to their obligations to disabled tenants.
Ian Eggleton is an NRAC Access Consultant, Chartered Building Surveyor and Director of Evans Jones Access. Over the last 25+ years he has completed Disabled Access Audits for over 9000 buildings. Below, he outlines some of the main accessibility requirements and guidance for residential landlords.
When is a tenant considered Disabled?
For the Equality Act to apply, your tenant must be considered disabled for the purposes of the Act. Currently, around 24% of the UK population have a disability. With an ageing population, this is only likely to rise.
In order to be considered disabled under the Equality Act, a tenant must have a physical or mental impairment which has a substantial and long term impact on their normal day-to-day activities.
What is perhaps most important to understand is that a tenant’s disability may not be visible. For example, mental illness and also progressive conditions from the point of diagnosis such as cancer or multiple sclerosis.
‘Long term’ is generally held to be more than a year, so this generally excludes temporary conditions such as a broken limb.
My tenant is disabled what are my obligations as a landlord?
On the assumption you are a Residential Landlord, Part 4 of the Equality Act is likely to govern the relationship between you and your tenant.
Sections 35 and 36 both cover management of premises and make it very clear that both landlords, managing agents and management companies are “duty holders” under Part 4 of the Act.
As a duty holder it is unlawful for you to discriminate against or victimise a disabled person for reasons relating to their disability. Examples of such discrimination or victimisation could involve offering the premises on less favourable terms, by refusing to let or sell the premises or by less favourable treatment generally.
It also imposes a duty on you to make reasonable adjustments, and this is the requirement around which there seems to be much confusion and misinformation.
What reasonable adjustments may I have to make?
Under Part 4, the duty to make reasonable adjustments is activated by the request of an existing or prospective tenant or leaseholder. The Act makes it clear that it will never be reasonable for the duty holder to make an adjustment which involves the removal or alteration of a physical feature, i.e. there is no obligation to make physical alterations.
However, at Schedule 4 the Act does clarify that furniture, furnishings, materials and equipment are not physical features for the purposes of the Act. It also confirms that the following works will not be considered to be an “alteration of a physical feature”:
- The replacement or provision of a sign or notice
- The replacement of a tap or door handle
- The replacement, provision or adaptation of a doorbell or door entry system
- Changes to the colour of a wall, door or any other surface
These are the only examples offered but I’d suggest this is not intended to be an exhaustive list although, again there is no requirement to make physical alterations.
Based on this, you have no obligation to make proactive alterations generally, save for some very limited adjustments as set out above which, in turn, are reactive duties activated by the request of a tenant.
Nonetheless, there is an obligation to ensure policies, practices and procedures, as well as the terms of a tenancy agreement do not discriminate against a disabled tenant, and this should not be forgotten or underestimated.
Do disabled tenants have a right to adapt their own rented property?
The Equality Act includes provisions for disabled tenants to request consent for adaptations. A landlord cannot unreasonably withhold consent and, if the landlord does not respond he/she is automatically deemed to have consented.
The landlord can apply reasonable conditions to any such consent, such as provisions for reinstatement at the end of the term or on vacation. All costs arising will generally be met by the tenant.
Can a tenant make alterations to the common parts?
Landlords have no obligation to make alterations to common parts.
There is provision within Schedule 4 of the Act to allow tenants to request alterations to common parts but – to date – this has only been enacted in Scotland.
In Scotland, a disabled tenant has the right to make adjustments to the common parts of property – subject to notification to the other owners, the majority of whom must give their consent.
As above, the landlord can apply reasonable conditions to any such consent, such as standard of work, reinstatement and maintenance obligations. All costs arising will generally be met by the tenant.
These provisions have not been enacted in England, Wales and Northern Ireland although there does seem to be a will to do so. The previous government consulted on this in 2022 so it feels likely that this will happen but the wheels of government turn slowly and I’m afraid I don’t currently have a date for this.
What about shared facilities?
This is where there may be an exception. The case of Plummer v Royal Herbert does call into question the status of shared facilities such as, in this case, leisure clubs.
The ruling means that landlords may be treated as service providers for the purposes of these facilities, particularly if there is some public use and as a result may be required to make proactive reasonable adjustments to physical features under Part 3 of the Act.
So, if there are shared facilities, particularly if there is some public use, I suggest you assume that Part 3 applies and take further advice from an Access Consultant.
Are the obligations any different for social housing providers or councils?
The obligations under Part 4 remain the same but Public Authorities have additional duties under Part 11 (Public Sector Equality Duty) to consider the impact of their policies on disabled people and to actively promote equality of opportunity and eliminate discrimination.
The application of this duty is for another time but, in summary, I would expect public sector landlords and housing associations to be providing accessible accommodation, regardless of their limited obligations under Part 4, to meet this duty.
Summary
As a private residential landlord you are unlikely to have any obligation to make physical adjustments to a tenant’s unit, although you may be obliged to make some minor adjustments to equipment or furniture upon request.
As it stands, tenants have no right, under the Equality Act, to make adjustments to Common Parts (unless in Scotland) although I do see these rights being extended to the rest of the UK in the medium term.
There may be complications if there are shared facilities such as gyms, swimming pools and spas, particularly if there is some public use.
If you want to take a positive approach and understand how you might adapt your property to make it more accessible, and attractive to disabled tenants, the first step is to commission an Access Audit. Please do contact me on 0800 001 4090 or ian.eggleton@evansjones.co.uk for a free quotation.
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