Many unit owners might be surprised to know that the body corporate has legal responsibilities in relation to persons with disabilities.
Under law, bodies corporate cannot discriminate against and are required to make reasonable adjustments for both tenants and visitors who have a disability.
This includes when granting access to premises, facilitating quiet enjoyment of accommodation, providing day-to-day maintenance, common services and employing staff.
As more and more people call apartments home including the elderly and disabled, it is important that bodies corporate aware of their duty to address complaints of discrimination and to take action to prevent them from occurring in the first place.
This information sheet provides tips to help bodies corporate meet these obligations by preventing discrimination when providing access to lots and common property in a strata scheme.
What is Discrimination?
Discrimination is treating someone unfavourably, or proposing to, because of a personal attribute protected by the Disability Discrimination Act 1992
Discrimination can also happen if an unreasonable policy or practice is applied that may disadvantage someone because of a personal attribute including disability, sex, age, race and sexual orientation.
Additionally, it is against the law to authorise and assist discrimination, or to victimise someone for making a complaint about discrimination.
Obligations for Bodies Corporate in Relation to People with Disabilities
When providing a service, the body corporate must not discriminate based on someone’s personal attributes.
‘Services’ could include maintenance, access to doors and hallways, ensuring there is sufficient lighting and signage etc.
A body corporate must:
Make ‘reasonable adjustments’ for people with disabilities. For example, when maintaining a common area, the body corporate must make reasonable adjustments to allow people with disabilities to access and use the area. (See Case Study 1)
Not authorise and assist discrimination, such as requiring a committee or manager to impose discriminatory conditions on meetings that do not accommodate a person’s disability.
For example, the body corporate should not schedule meetings at locations that cannot be accessed easily by a person with a disability (for instance by people using wheelchairs), or in a manner that is inaccessible to people with other disabilities, such as people with hearing disability.
A body corporate must also allow an owner/occupier of a lot it manages to make reasonable alterations to common property to meet their special needs if:
- the person can pay for it
- alterations do not adversely affect the interests of other occupiers or their use of common property
- the alteration does not involve alteration of the premises of any other occupier; and
- the action required to restore property to the condition it was in before the alterations would be reasonable
- the owner/occupier agrees to restore the property to its previous condition and it is reasonably likely they will do so.
Changes need to comply with building regulations. A body corporate therefore must consider alterations designed to enhance access for people with disabilities.
Considering Reasonable Changes
As with most aspects of strata living the body corporate must act on what is ‘reasonable’.
Bodies corporate must consider whether there are any potential problems for people in accessing their premises and think about how to ‘reasonably’ address these. Things to consider when looking at measures to take include:
- How poor accessibility might affect people with different types of disability (for instance, people with vision impairment or people using wheelchairs or walking frames)
- What changes are required to accommodate a person’s disability
- The body corporate’s own financial circumstances
- The effect of making a change, that is, who would be disadvantaged but also who else may benefit. For example, the installation of ramps assists older people and people with prams as well as those with disability.
It may not be possible to prevent discrimination in some circumstances when the adjustments required are not reasonable.
The body corporate, however, must demonstrate that it has considered how it can best promote access to the building, individual lots and common property for disabled residents.
Do we need to upgrade access to our building?
There is no obligation on a body corporate to specifically go and do things to make the building compliant with the various codes for differently abled persons. If it was up-to-code when it was built, it remains that way unless someone raises it as an issue.
The question of whether or not a body corporate has a duty to modify common property to facilitate easier access for residents generally depends on the answers to the following key questions:
(a) Are there disabled residents in the strata scheme?
(b) If so, is the requirement for those disabled residents to travel through the presently available pedestrian routes on common property to get to and from their lots not reasonable having regard to the circumstances?
(c) Would the modifications to the common property pedestrian routes requested by disabled residents impose unjustifiable hardship on the owners corporation?
If a resident needed something upgraded to suit their circumstances, then their request is likely to be successful.
The answer to these questions will depend on the specific circumstances of any particular strata scheme.
However, if there are disabled residents in a strata scheme who cannot, because of their disability, access their lots or common property, and simple and inexpensive modifications can be made to facilitate easier access for those disabled residents, then there is a very good chance that the body corporate be forced to make those modifications under the Anti-Discrimination Act.
Case Studies of Previous Decisions in Queensland
Case Study 1: Gold Coast body corporate ordered to pay $5,000 and issue apology for failure to install electric pool hoist
A Gold Coast unit complex body corporate has to compensate and apologise to a woman who uses a wheelchair because she has been unable to use the building’s indoor swimming pool, which has steps.
The body corporate for beachfront 19th Avenue, Palm Beach, failed to install an $8161 electric pool hoist that would have allowed Alison Knox to use the complex’s pool.
Despite unit owners voting to approve the pool hoist in April, 2019, the spending associated with its installation was not approved, a tribunal heard.
Since Mrs Knox had a stroke in 2010, which affected her ability to walk or move, she has been confined to a wheelchair, Queensland Civil and Administrative Tribunal heard.
On December 16, a tribunal member found the body corporate had indirectly discriminated against Mrs Knox.
The member said the requirement that Mrs Knox use the stairs to get into the pool was not reasonable after the pool hoist approval by lot owners on April 24, 2019.
The body corporate was ordered to pay Mrs Knox $5000 in compensation for the inconvenience and loss of use of the swimming pool and make a private apology to her within 45 days.
Read a summary report of the case here.
Case Study 2: Queensland tribunal orders body corporate to pay $25,000 for refusing to modify locks
A body corporate was unwilling to install electronic devices to enable a resident with severe physical disabilities to access common areas blocked by security gates.
Due to this, the resident experienced great difficulty moving around the complex without assistance.
A tribunal found that:
Legislation required the body corporate to control, manage and administer its common property and renew any fixtures including gates and doors
Access to common property amounted to “access to a service”. The body corporate of the unit complex was responsible for providing this.
The tribunal ordered payment of $25,000 compensation.
Read a summary report of the case here.