Memorandum by the Department for Education
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
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
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
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.
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
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 peoplefor example, a flight of stairsbut
also when other elements such as the fixtures or fittings or furnishings
make access difficultfor 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
2004the 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