Joint Committee on Statutory Instruments Twenty-First Report


APPENDIX I

Memorandum by the Department for Education and Employment

DISABILITY DISCRIMINATION (SERVICES AND PREMISES) REGULATIONS 1999
(S.I. 1999/1191)

  1. The Committee has requested a memorandum on the following point:

      Regulation 3 provides that for the purposes of section 21(2) of the Act the following are to be treated as physical features (whether permanent or temporary): [(a)] any feature arising from the design or construction of a building on the premises occupied by the provider of services; [(b)] any feature on the premises occupied by the provider of services or any approach or access to such a building; and [(e)] any other physical element or quality of any land comprised in the premises occupied by the provider of services. Given that section 21(5)(e) confers a power to make provision as to things which are to be treated as physical features, explain how paragraphs (a),(b) and (e) of regulation 3 indicate "things" and what they add to section 21(2) which refers to "a physical feature (for example, one arising from the design or construction of a building or the approach or access to premises)".

As a preliminary point, it may be helpful to the Committee to know that the Department's policy in making these Regulations was that the things which should be treated as "physical features" for the purposes of section 21(2) of the Act should be the same as the things which are treated as "physical features" for the purposes of section 6(1) of the Act. Paragraphs (a), (b) and (e) of regulation 3 therefore mirror paragraphs (a), (b) and (d) of regulation 9 of the Disability Discrimination (Employment) Regulations 1996 (S.I. 1996/1456) ("the 1996 Regulations"). Regulation 9 of the 1996 Regulations was made under the power in section 6(8)(g) of the Act, which, like section 21(5)(e), confers a power to make provision "as to things which are to be treated as physical features". The 1996 Regulations were included in the Annex to the Committee's Twenty-Fourth Report (Session 1995-1996) as an instrument to which the Committee did not draw the special attention of both Houses.

  2. Turning to the Committee's particular questions, "thing" has a very wide meaning: to quote only part of the list of its possible meanings in the New Shorter Oxford English Dictionary, it means " II An entity of any kindThat which exists individually; that which is or may be an immaterial or abstract object of perception , knowledge or thought; a being, an impersonal entity of any kind; a specimen or type of something. Also, an attribute or property of a being or entity." The Department considers that both "features" in paragraph (a) and (b) and any "physical element or quality" in paragraph (e) fall within this definition, either as an entity or as an attribute of an entity.

  3. The Committee has also asked what each paragraph of regulation 3 adds to section 21(2). The Department recognizes that paragraph (a) of regulation 3 is drafted in terms which reflect the example in section 21(2). However, the Department would draw the Committee's attention to the words in the head-piece to regulation 3, which make it clear that even temporary features are to be treated as physical features. Regulation 3(a) therefore prevents the argument that temporary features arising from the design and construction of a building do not count as physical features.

  4. Similarly, paragraph (b) of regulation 3 is intended to make the same point clear in relation to features of approaches to, exits from or access to such a building. However, in considering the Committee's memorandum, the Department has noticed two typographical errors in regulation 3(b), as follows. The first "or" in paragraph (b) ought to have been "of", and there is a comma missing between "approach to" and "exit from". The Department regrets these errors and will be correcting them as soon as it can.

  5. Finally, paragraph (e) of regulation 3 is intended both to provide that elements or quality of land could be features, and, as with the other paragraphs, to make it clear that this is the case even if those elements or that quality is only temporary. For example, paragraph (e) enables particularly muddy land on which premises are sited to be treated as a physical feature for the purposes of section 21(2).

25 May 1999



Memorandum by the Department for Education and Employment

DISABILITY DISCRIMINATION (SERVICES AND PREMISES)
REGULATIONS 1999 (S.I. 1999/1191)

  1. These regulations are being made under Part III of the Disability Discrimination Act 1995 ("the Act")—the rights of access to goods, facilities and services.

Background

  2. On 1 October 1999, the first phase of the later rights in Part III of the Act are coming into force. From that date, service providers will have to take reasonable steps to:

      —change practices, policies or procedures which make it impossible or unreasonably difficult for disabled people to use a service (s21(1) of the Act);

      —provide auxiliary aids or services which would make it easier for, or enable, disabled people to use a service (s21(4)); and

      —overcome physical features which make it impossible or unreasonably difficult for disabled people to use a service, by providing the service by a reasonable alternative method (s21(2)(d)).

  3. These regulations:

      —prescribe items which are to be treated as physical features in relation to s21(2); and

      —items which are not to be treated as auxiliary aids and services for the purposes of s21(4).

  4. The regulations are intended to ensure that disabled people derive maximum benefit from the provisions of the Act that are to come into force on 1 October 1999, whilst service providers will not have to make adjustments that affect the physical fabric of premises until a later date. The proposals were the subject of wide consultation.

Description of Regulations

  5. Regulation 1 provides that the regulations will come into force on 1 October 1999.

  6. Regulation 2 specifies the meaning of "the Act" and "building".

  7. Regulation 3 defines the term "physical features", which appears in s21(2), to include furniture, equipment, and fixtures and fittings as well as the design or construction of a building or the approach or access to premises. The definition also includes equipment taken to other people's premises. That might include, for example, equipment on a mobile library or mobile shop parked away from the local authority or shop owner's own land. Without this element of the definition, features which obstructed access to the library or shop in those circumstances would not be covered and disabled people's rights in those circumstances would be less.

  8. This regulation will ensure that the duty to provide the service by reasonable alternative means will be required in a wide range of circumstances. It will be triggered not only when an element of the construction creates the difficulty for disabled people—for example, a flight of stairs—but also when other elements such as the fixtures or fittings or furnishings make access difficult—for example, when the arrangement of furniture in a reception area effectively creates a barrier for wheelchair users.

  9. Regulation 4(1) specifies items that are not to be treated as auxiliary aids or services for the purposes of s21(4) of the Act. Its purpose is to ensure that service providers, whilst being required to provide a wide range of aids or services that will enable, or make it easier for, disabled people to make use of their services, will not have to make physical adjustments to their premises or their contents when doing so.

  10. Regulation 4(2) specifies that this regulation will cease to have effect when sections 21(2)(a)—(c) come into force. Those sections are due to come into force in 2004—the second and final phase of the later rights in Part III of the Act. Since service providers will then be required to make reasonable physical adjustments where obstacles prevent access to their services, they will also be required to make physical adjustments when providing auxiliary aids or services.

20 April 1999


 
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