As the population ages and housing trends shift towards higher density living in community titles schemes, we are seeing issues arise regarding accessibility to and around schemes.
Many older buildings will not comply (and are not required to comply) with current disability access standards for new buildings.
Generally speaking, building standards are grandfathered, such that older buildings are not required to be updated at considerable expense as disability access standards change.
Even if a building complies with the relevant disability access standards that applies to it, there is an ability for residents (and others) to complain that a body corporate has discriminated against them on the basis of disability under the complaints driven process prescribed by the Anti-Discrimination Act 1991 if they are unable to access certain areas or use certain facilities.
These sorts of matters very much hinge upon their facts and it is difficult to provide useful general overarching principles.
However, in the recent decision by the Queensland Civil & Administrative Tribunal in the matter of Knox v Body Corporate for 19th Avenue CTS 6625, the Tribunal provided an extensively reasoned analysis of the relevant law in this area as it relates to body corporates.
The matter concerned a large beachfront high rise scheme on the Gold Coast and a complaint brought on by an elderly, wheelchair bound resident. The applicant complained that she was unable to traverse various access ways in and around the building and also that she was unable to use the common property indoor pool because the pool did not have a wheelchair hoist. Consequently, the applicant claimed, the body corporate was indirectly discriminating against her, and she sought $50,000 in compensation and an order than the body corporate install a wheelchair hoist at its cost.
It is interesting to note that, aside from the complaint driven process the subject of the proceedings, there was no particular standard or law that would require the body corporate to spend owners’ funds to install a pool hoist. The evidence suggested that, at the time the building was constructed, it complied with the relevant disability access standards.
The tests for indirect discrimination under the Anti-Discrimination Act 1991 are complex. It is necessary for an applicant to first demonstrate that discrimination is occurring in a context prohibited by the Act. Relevantly to body corporates, the Act prohibits discrimination occurring in accommodation – section 83 of the Act. It also prohibits discrimination in the context of supplying services – section 46 of the Act.
It was not disputed in the matter that a body corporate provides “accommodation” within the meaning of section 83 of the Act.
The Tribunal considered whether a body corporate supplies “services” within the meaning of section 46 of the Act. The Tribunal determined that the term “services” when used in anti-discrimination legislation should be given its ordinary and broad meaning, and concluded that “services” includes access to and use of the pool and associated facilities that form part of the common property.
Having established that the body corporate provides “accommodation” and supplies “services”, the Tribunal considered whether the complaints made by the applicant amounted to indirect discrimination.
Section 11 of the Act provides that indirect discrimination on the basis of an attribute happens if a person imposes or proposes to impose a term:
- with which a person with an attribute does not or is not able to comply; and
- with which a higher proportion of people without the attribute comply or are able to comply; and
- that is not reasonable.
The Tribunal considered that whether a term is reasonable depends on all relevant circumstances in the case and that all relevant factors must be weighed.
In this particular case, it was not contentious that the applicant had the attribute of being impaired for the purpose of the Act as she had suffered a stroke and was confined to a wheelchair.
The Tribunal considered whether each of the matters complained of amounted to indirect discrimination under the Act.
Most of the applicant’s complaints were dismissed, for various reasons, including:
- The Tribunal accepted the fact that the Body Corporate was required to comply with the regulatory regime imposed by the Body Corporate & Community Management Act 1997 and accompanying regulation modules and was not in a position to simply carry out works, such as the modification to common property, without the appropriate approvals from lot owners.
- In respect of some of the complaints, alternative access pathways were available through the building around those pathways the applicant could not traverse.
- Most notably, the Tribunal made findings of fact that the applicant’s husband was responsible for and/or contributed to delay in the completion of disability works by the body corporate. That was a significant finding of fact that led to the Tribunal considering that most of the terms imposed by the Body Corporate in respect of access were reasonable in the circumstances and therefore did not amount to indirect discrimination.
However, the complaint that the applicant could not get down the steps into the swimming pool and there was no hoist for wheelchair bound people was partially upheld.
The facts are somewhat complex but it would appear that the body corporate convened an extraordinary general meeting in 2019 to approve certain disability access works to the common property, at the body corporate’s expense, to address the applicant’s concerns. Most of those works were approved and subsequently carried out. However, in relation to the pool hoist, while the improvement to common property necessitated by the installation of a pool hoist was approved, the actual works required and the spending associated with the installation of the hoist, which was the subject of a separate motion, were not approved.
The Tribunal relied upon that point, together with the Body Corporate’s strong financial position, to reach the conclusion that from the date of that general meeting, the body corporate had discriminated against the applicant by failing to provide disabled access to the pool.
The Tribunal did not require the body corporate to install a pool hoist as sought by the applicant. Rather, the Tribunal determined that it was a matter for the body corporate as to how it addressed the issue of access to the swimming pool.
The applicant had claimed the sum of $50,000.00 compensation in the matter. The Tribunal determined that the appropriate amount of compensation having regarding to the limited finding of discrimination was $5,000.00. The body corporate was also ordered to apologise to the applicant in respect of the limited finding of discrimination.
Although the application was mostly dismissed, committees ought to take note of this decision.
The Tribunal has significant discretionary powers in these matters. Although the scope of the finding of discrimination in this case was very limited, the finding confirms that the Tribunal has power to make a finding of discrimination even in circumstances where a building complies with the building standards that apply to it. The Tribunal has that power even where a committee has abided by a decision of a general meeting not to modify common property in a particular way, at the expense of the body corporate, and for the benefit of a single owner.
These types of matters very much hinge upon their facts. In this matter, the Tribunal decided that the applicant’s husband had obstructed the attempts by the Body Corporate to implement the disability access project. That was a significant factor leading to the dismissal of most of the complaint.
Also in this matter, upon learning of the applicant’s complaints, it seems that the committee had been proactive in formulating a disability access project and convening a general meeting to approve that project. Had the committee not taken those proactive steps, the outcome for the body corporate may have been very different.