On the First Day of Christmas...

… Real Estate disputes trainee, Jake Marshall, gives us a summary of landlords’ duties to make reasonable adjustments for disabled tenants and highlights potential incoming reform in this area. This is the first in a series of 12 articles in which our disputes team look back over some key real estate decisions and developments of 2022.

Landlords may soon be required to make reasonable adjustments to common parts to avoid disadvantages felt by disabled tenants, following a recent Equality Hub consultation.

Let’s break down what the current duties to make reasonable adjustments for disabled tenants are, and what the proposed changes would look like. Note that the duties below are reactive not anticipatory – that is, they are only triggered upon request by a disabled tenant or a disabled person considering taking a letting of the premises (or their representatives).

The current duties 

There are currently two broad duties on landlords to make reasonable adjustments for disabled tenants, both relating to the let premises itself, not any common parts.

Lease terms and associated consents

The first duty is to take reasonable steps to avoid disadvantage caused by a ‘provision, criterion or practice’ which may apply to all tenants, but has a particular disadvantage on a disabled tenant because of their disability.

The disadvantage must be ‘substantial’ and relate to (i) the enjoyment of the premises or (ii) the use of a benefit or facility arising from the lease.

Crucially, ‘provisions’ include lease terms. So, for example, a term prohibiting animals from being kept on the premises should not prevent a blind tenant from keeping a guide dog. Perhaps more likely in practice, it would include absolute prohibitions on alterations. It also applies to agreements or consents arising from the lease. So, for example, the duty would apply to a landlord’s consent to alter where the lease contains a (fully) qualified covenant not to alter.

Auxiliary aids

The second duty is to take reasonable steps to provide an auxiliary aid where this would avoid a substantial disability-related disadvantage relating to (i) or (ii) above.

The draft duty relating to alterations to common parts

The Equality Act 2010 s 36 and Schedule 4 paragraphs 5-7 already sets out the detail of this duty, but it has not yet been brought into force.

If this legislation is ‘switched on’ in its current draft form, landlords would be obliged to take reasonable steps to make reasonable adjustments to physical features in common parts of a building to avoid a tenant’s substantial disability-related disadvantage in entering, leaving or moving around communal areas of the building. Adjustments could include removing or altering the physical feature in question, but also providing a reasonable means of avoiding it.

There are some important limitations to this duty however:

• The tenant must be using the let premises as ‘their only or main home’
• The landlord is entitled to insist that the disabled tenant bears the cost of the installation, maintenance and eventual restoration of the works. The disabled tenant may be able to get financial assistance from their local authorities or the landlord may optionally seek to increase the service charge for everyone in the building.
• Certain landlords are exempt under Schedule 5 (see pp. 10-11 of the Equality Hub’s consultation paper)
• As with all the duties, the landlord is only obliged to make adjustments if they are reasonable. What is reasonable here heavily depends on the nature of the property and the lease, the effect on other occupants and the means of the disabled tenant (a fuller list of factors is found at pp.15-16 of the consultation paper)

When is reform expected?

The Equality Hub consultation closed on 18 August 2022, with the government’s response to be “published as soon as possible in 2023”. The thrust of the consultation appears to be “get the details of implementation right” rather than to decide whether to implement or not (see p.4 of the consultation paper)

Conclusion

If the provisions are implemented as expected, it would impose more onerous requirements on landlords and managing agents to ensure that disabled tenants are able to access common areas of multi-let residential buildings.