Installation of pre-fabricated timber frame building raises equality issue of temporary vs permanent disabled access
The Vicar and Churchwardens of St Christopher’s Church, Walworth, sought permission for the installation of a pre-fabricated timber frame building into the community garden at the church, Re St Christopher Walworth  ECC Swk 14. The contentious issue within this petition was the non-permanent nature of the proposed access for wheelchair users. Unanimous approval of the project had been given by the PCC, and the necessary planning permission had been granted. However, although approval was given by the DAC, its Notification of Advice recommending the works included two provisos: an unproblematic one stating that the work should be completed to the satisfaction of the Church’s Inspecting Architect; and a second that :
“The PCC should keep the issue of accessibility to the garden premises under review, and make plans for the future for full compliance with the Equality Act 2010 (in particular as/when any future landscaping of the garden is being planned), having regard to the written guidance from the diocesan accessibility adviser (as available on the diocesan website).
Compliance with Equality Act 2010
Addressing the second proviso, Chancellor Petchey stated: “the DAC are not lawyers. I am” . He then explained the complex nature of the requirement, and expressed a degree of disquiet at the Petitioners’ apparent “impatience with the concerns that have been raised about the application of equality law”. Having been formally notified of the equality issue, the Chancellor stated that he was bound to consider the matter; if he formed the view that the proposals were not Equality Act compliant, he did not think that he should grant a faculty for them.
However, although he indicated that he would so intervene by not granting a faculty if he thought that the proposal did offend the Equality Act 2010, he “was not seised directly of the legal question of whether there is or is not compliance with the Act” . Similarly the planning authority in deciding whether to grant planning permission “will have considered the position under the Equality Act 2010, but the grant of such permission does not mean that there necessarily is compliance”, [footnote 11, para 34].
From the petitioner’s point of view:
“they have achieved a common sense solution to providing a new building at an affordable cost to enable the Church to expand its important work in the parish; the issue of access for those whose mobility is impaired being addressed by an equally common sense solution, whereby access by a ramp will readily be available when required,” .
However, the Chancellor commented  [emphasis added]:
“… common sense is a notoriously uncertain guide, potentially meaning no more than what the person relying on it considers ought to be the case. Moreover…the duty contained in the Equality Act 2010 is not simply to make reasonable provision for the disabled but not to discriminate against the disabled, which is rather different (even though the duty not to discriminate may include the duty to make reasonable provision).
In any event, anyone who has had to construe the terms of the Equality Act 2010 and the Statutory Code of Practice [Services, Public Functions and Associations] made under it will appreciate that those provisions are very complicated. Compliance with those provisions should not be taken for granted,” .
The Mission Statement of the Disability Inclusion Policy of the Diocese of Southwark, provided a starting point, on which the Chancellor observed [emphasis similar to original]:
“. …law itself will generally incorporate a policy and, where it does, it is useful to understand that policy as an aid to interpretation. The policy of the law relating to the treatment of the disabled was first enunciated in a church case, namely in In re Holy Cross, Pershore,  Fam 1 (Consistory Court of the Diocese of Worcester). Mynors Ch said [para. 105] that that policy was … to provide access as close as it is reasonably possible to get to the standard normally offered to the public at large.
. The words of Mynors Ch were endorsed by the Court of Appeal in Ross v Ryanair Limited  1 WLR 2447 [per Brooke LJ at paragraph 32] and by the Court of Arches in In re Holy Trinity, Eccleshall. Unsurprisingly, this reflects the principle enunciated in Diocesan Policy but it will be noted that, as translated into law, the principle is qualified by the phrase as close as reasonably possible and the requirement is to provide access of the same standard (i.e. not necessarily the same access).
. However if the policy of the law is as articulated by Mynors Ch, its actual expression is not in terms of a positive duty to provide access of any particular standard but rather a negative duty not to discriminate“.
The Chancellor then described that negative duty in relation to sections 13, 15, 19 and 29 of the Equality Act 2010, i.e. duties not to discriminate against those who have certain “protected characteristics”, one of which is disability. In the context of the instant case, , discrimination involves treating a disabled person less favourably than a person who is not disabled. S29(2) provides that: “A service-provider (A) must not, in providing the service, discriminate against a person (B) — (a) as to the terms on which A provides the service to B …”
A service-provider is under a duty to make reasonable adjustments to address any situation that involves discrimination by virtue of sub-section (2). It is implicit that if a service-provider makes those reasonable adjustments then he will have discharged the primary duty not to discriminate. Paragraph 7.39 of the Statutory Code states
“If, having considered the issue thoroughly, there are genuinely no steps that it would be reasonable for a service provider to take to make its services accessible, the service provider is unlikely to be in breach of the law if it makes no changes. Such a situation is likely to be rare.”
Under the heading “Implementation”, the Diocesan policy gives the following guidelines for good practice:
- where possible all should be able to access the building independently;
- where possible there should be free movement around the building for someone independently to use a wheelchair or other aids to assist their movement;
- where possible steps and obstructions should be removed. Full participation in all aspects of worship is central to the expectation of the worshipper.
As a consequence,
“. … had the [proposed building] been erected before either the Disability Discrimination Act 1995 or the Equality Act 2010 had come into force, the church would have been bound to make reasonable adjustments to address the fact that it was not accessible by those who were disabled (if it had not done so before). It would, on the face of it, have made provision for a temporary ramp (and, in the circumstances, for nothing more). Thus … a temporary ramp represents the minimum provision that must now be made”.
However, the building which is the subject of the instant case was not pre-existing: a new building could be provided (albeit at a cost) that did not sit 6 inches above the ground; and the view might be taken that a permanent ramp should be provided, albeit with the loss of part of the garden area –  which refers to paragraph 7.27 of the Code of Practice.
The Chancellor stated [emphasis in original]:
“. …[t]he key question in the present case is whether the proposal is unsatisfactory. By this I mean whether it discriminates against the disabled: treats a disabled person using the premises less favourably than one who is not disabled…the legal requirement is not to provide equal or the same access but access that is not less favourable…the provision of different access might offend the dignity of disabled people or might be inconvenient (and therefore be considered discriminatory) but this is not necessarily the case.
. … on the material before me and on balance, I am not persuaded that it does discriminate. I consider that the different provision that it makes for those who are disabled is not disadvantageous in the circumstances of the case. No doubt the Vicar or whoever is organising a particular meeting will know in advance whether the ramp will be needed; and for meetings where that information is not available, the ramp could be put down in advance”.
In view of the conclusion set out at paragraph 29, the Chancellor directed that a faculty should issue, subject to a general requirement on the PCC to keep the access arrangements under review, noting that under paragraph 7.27 of the Statutory Code, the duty to make reasonable adjustments is a continuing duty.
Although the Building Regulations do not apply as the proposed building is less than 30 square metres in area, [Regulation 9 and Class 6 of Schedule 2 to the Building Regulations 2010 (SI 2010 No 2214)], for completeness the Chancellor stated that were this the case, reasonable provision must be made for people to: (a) gain access to; and (b) use the building and its facilities, [M1 of Part M of Schedule 1 to the Building Regulations 2010]. The Objectives set out in the Regulations provide:
2.1 The aim for all new buildings is for principal entrance or entrances and any main staff entrance, and any lobbies, to be accessible.
2.2 Where it is not possible e.g. in an existing building, for the principal or main staff entrance or entrances to be accessible, an alternative accessible entrance should be provided.
Accessible means that people, regardless of disability, age or gender, are able to gain access, [paragraph 0.26, Approved Document M – Access to and use of buildings: Volume 2, Buildings other than dwellings: 2010 edition].