Submission to VBC/ABCB consultation on accessible housing

25 May 2005

Mr Rex Deighton-Smith
Accessible Housing Project
Jaguar Consulting Pty Ltd
PO Box 522
Malvern
Vic 3144

Dear Mr Deighton-Smith

Thank you for the opportunity to comment on your consultation paper Accessible Housing in Australia - A research report .

I would like to begin by congratulating the Victorian Building Commission and the Australian Building Codes Board on this initiative. The public policy debate on housing suitable for people with disabilities, as owners, tenants or visitors has grown over the last couple of years along with the debate about the need to plan for 'lifetime' housing for our ageing community. I am sure this research project will assist us to identify suitable strategies to address identified needs.

In this initial submission I would like to broadly address three issues. First, I would like to look at housing in the international human rights context. Secondly, I would like to provide you with my views on the ways in which various sections of the Disability Discrimination Act 1992 (Cth) (DDA) may impact on housing and finally I would like to provide some general comment on policy options for ensuring a sustainable housing market.

I would welcome an opportunity to make further submissions as this project develops and would also like to take up your offer of direct consultation with the consultants.

Human rights and adequate housing

The human right to housing is set out in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and a number of other widely adhered to international declarations. While there are many references to adequate housing I would draw your attention in particular to the following.

Article 25 of the Universal Declaration of Human Rights states:

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

This declaratory statement is reflected in Article 11 of the binding International Covenant on Economic, Social and Cultural Rights, which states:

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. 

A 'General comment on implementation' to Article 11 makes it clear that a broad interpretation of the word 'adequacy' is envisaged:

The right to adequate housing (Art.11 (1)):

8. Thus the concept of adequacy is particularly significant in relation to the right to housing since it serves to underline a number of factors which must be taken into account in determining whether particular forms of shelter can be considered to constitute "adequate housing" for the purposes of the Covenant. While adequacy is determined in part by social, economic, cultural, climatic, ecological and other factors, the Committee believes that it is nevertheless possible to identify certain aspects of the right that must be taken into account for this purpose in any particular context. They include the following:



(e) Accessibility . Adequate housing must be accessible to those entitled to it. Disadvantaged groups must be accorded full and sustainable access to adequate housing resources. Thus, such disadvantaged groups as the elderly, children, the physically disabled, the terminally ill, HIV-positive individuals, persons with persistent medical problems, the mentally ill, victims of natural disasters, people living in disaster-prone areas and other groups should be ensured some degree of priority consideration in the housing sphere. Both housing law and policy should take fully into account the special housing needs of these groups.;

Further interpretive assistance is provided by the United Nations Committee on Economic, Social and Cultural Rights in its General Comment No. 4, paras. 1, 6 and 7, which states:

The right to adequate housing, ... derived from the right to an adequate standard of living, is of central importance for the enjoyment of all economic, social and cultural rights... The right to adequate housing applies to everyone... [I]ndividuals, as well as families, are entitled to adequate housing regardless of age, economic status, group or other affiliation or status... [T]his right must ... not be subject to any form of discrimination... [T]he right to housing should not be interpreted in a narrow or restrictive sense... Rather it should be seen as the right to live ... in security, peace and dignity...

Finally the Habitat Agenda , adopted by the second United Nations Conference on Human Settlements (Habitat II) at Istanbul on 14 June 1996 - paras. 39, 40, and 43 states :

We reaffirm our commitment to the full and progressive realization of the right to adequate housing... We recognize an obligation by Governments to enable people to obtain shelter and to protect and improve dwellings and neighbourhoods. We commit ourselves to the goal of improving living ... conditions on an equitable and sustainable basis, so that everyone will have adequate shelter that is healthy, safe, secure, accessible and affordable and that includes basic services, facilities and amenities, and will enjoy freedom from discrimination in housing and legal security of tenure. We shall implement and promote this objective in a manner fully consistent with human rights standards... We ... commit ourselves to ... Providing legal security of tenure and equal access to land to all people ...; Promoting access for all people to safe drinking water, sanitation and other basic services, facilities and amenities ...; Eradicating and ensuring legal protection from discrimination in access to shelter and basic services, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status...

(For a fuller account of the range of international treaties and declarations relevant to the right to adequate housing I would refer you to the UNHCR Fact Sheet Number 21 http://www.unhchr.ch/html/menu6/2/fs21.htm .)

There can be little doubt that in an international context the availability of housing suitable to the needs of people with disabilities is considered a human right. Australia voted in favour of the Universal Declaration and ratified the International Covenant on Economic, Social and Cultural Rights and other relevant treaties. As such, it has a responsibility to ensure the housing market is responsive to the needs of people with disabilities.

How a nation is to meet those responsibilities is not defined in the various treaties, but a range of potential strategies are possible including:

• publicly funded housing and accommodation programs;
• building regulation and certification through national, state/territory or local government mechanisms;
• anti-discrimination laws;
• industry incentives; and
• education and awareness raising.

The clear benefit of this research project is that it may assist to identify effective strategies that are currently not in place in Australia .

The Disability Discrimination Act and accessible housing

There are no provisions in Federal anti-discrimination law expressly requiring paths of travel to, or facilities in, private housing to be made accessible to people with disabilities.

While it is the responsibility of the President of the Commission to determine which complaints would be accepted there are a number of sections that I consider to be relevant in specific situations. These are:

Section 23 Access to Premises

This section is concerned with access to and use of premises, including buildings, public spaces such as parks, streetscape and playgrounds. However, the provision specifically limits premises covered to those 'that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not).'

Section 23 states:

(1) It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:

(a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or

(b) in the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises; or

(c) in relation to the provision of means of access to such premises; or

(d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or

(e) in the terms or conditions on which the first-mentioned person is prepared to allow the other person the use of any such facilities; or

(f) by requiring the other person to leave such premises or cease to use such facilities.

(2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability in relation to the provision of access to premises if:

(a) the premises are so designed or constructed as to be inaccessible to a person with a disability; and

(b) any alteration to the premises to provide such access would impose unjustifiable hardship on the person who would have to provide that access

Legal opinion provided by the Australian Government Solicitor confirms my own view that the term 'public' means 'the general public' and, as such, that this section of the DDA may have only limited application to Class 1 (single dwellings, terrace houses, town houses, etc) and Class 2 (a building containing two or more sole-occupancy units such as an apartment block). This is because it is not usual for the 'general public' to have right of access to such buildings.

As stated earlier, the President of the Commission has the authority to decide which complaints are accepted, however, with the information available to me at present I think it likely that complaints under s 23 in respect of Class 1 and Class 2 buildings may be limited to the following situations:

• Where a Class 1 building is being used as a holiday or short-term rental accommodation such as a Bed and Breakfast or an Eco-holiday retreat.
• Where a Class 2 building contains one or more sole-occupancy units that were being let to the public on a short-term basis as, for example, serviced apartments or holiday rental property.

Complaints in these two situations could result in findings of unlawful discrimination unless the defence of unjustifiable hardship were available.

Section 24 Goods, services and facilities

Section 24 covers the provision of goods, services and facilities and states:

(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

(2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or m akes the facilities available.

Where housing is being provided as a publicly funded or not-for-profit service, a failure to provide equitable access for people with disabilities to those services or facilities could be subject to a complaint of discrimination.

Section 25 Accommodation

Section 25 is essentially concerned with eliminating discrimination in relation to the provision of rental accommodation and the right of a tenant to make (restorable) alterations to the accommodation, at their own expense. The section includes a number of exceptions including where the accommodation provider (or near relative) lives in the same accommodation and the number of tenants is three or less.

Section 25 states:

(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:

(a) by refusing the other person's application for accommodation; or

(b) in the terms or conditions on which the accommodation is offered to the other person; or

(c) by deferring the other person's application for accommodation or according to the other person a lower order of precedence in any list of applicants for that accommodation.

(2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person's disability or a disability of any of the other person's associates:

(a) by denying the other person access, or limiting the other person's access, to any benefit associated with accommodation occupied by the other person; or

(b) by evicting the other person from accommodation occupied by the other person; or

(c) by subjecting the other person to any other detriment in relation to accommodation occupied by the other person; or

(d) by refusing to permit the other person to make reasonable alterations to accommodation occupied by that person if:

(i) that person has undertaken to restore the accommodation to its condition before alteration on leaving the accommodation; and

(ii) in all the circumstances it is likely that the person will perform the undertaking; and

(iii) in all the circumstances, the action required to restore the accommodation to its condition before alteration is reasonably practicable; and

(iv) the alteration does not involve alteration of the premises of any other occupier; and

(v) the alteration is at that other person's own expense.

(3) This section does not apply to or in respect of:

(a) the provision of accommodation in premises if:

(i) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside on those premises; and

(ii) the accommodation provided in those premises is for no more than 3 persons other than a person referred to in subparagraph (a)(i) or near relatives of such a person; or

(b) the accommodation is provided by a charitable or other voluntary body solely for persons who have a particular disability and the person discriminated against does not have that particular disability; or

(c) the provision of accommodation in premises where special services or facilities would be required by the person with a disability and the provision of such special services or facilities would impose unjustifiable hardship on the person providing or proposing to provide the accommodation whether as principal or agent.

Those covered by this section may be liable for complaints of discrimination if adequate provision is not made to allow an existing tenant to access all of the 'benefits' of the accommodation such as paths of travel to common areas including the front door of the tenant's living space, or to shared facilities, such as laundries. There may also be grounds for complaint if they refuse to allow the tenant to make reasonable alterations, so long as the specified conditions are met. This would be particularly the case where an existing tenant developed a physical disability.

Section 27 Clubs and incorporated associations

Section 27 is concerned with the actions of clubs or incorporated associations and states:

(1) It is unlawful for a club or incorporated association, the committee of management of a club or a member of the committee of management of a club or incorporated association to discriminate against a person who is not a member of the club or association on the ground of the person's disability or a disability of any of that person's associates:

(a) by refusing or failing to accept the person's application for membership; or

(b) in the terms or conditions on which the club or association is prepared to admit the person to membership.

(2) It is unlawful for a club or incorporated association, the committee of management of a club or a member of the committee of management of a club or incorporated association to discriminate against a person who is a member of the club or association on the ground of the member's disability or a disability of any of the member's associates:

(a) in the terms or conditions of membership that are afforded to the member; or

(b) by refusing or failing to accept the member's application for a particular class or type of membership; or

(c) by denying the member access, or limiting the member's access to any benefit provided by the club or association; or

(d) by depriving the member of membership or varying the terms of membership; or

(e) by subjecting the member to any other detriment.

(3) Paragraph (2)(c) does not render unlawful discrimination where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the club or incorporated association.

(4) Neither subsection (1) nor (2) renders it unlawful to discriminate against a person on the ground of the person's disability if membership (however described) of the club or incorporated association is restricted only to persons who have a particular disability and the first-mentioned person does not have that disability.

Where a body corporate is constituted as an incorporated association there may be a liability for complaints of discrimination where the association refuses to allow a current or prospective owner/occupier or tenant to take up residence or access any benefits afforded by the association (such as access to common areas or facilities) because of the person's disability.

This provision may also apply to time share accommodation if the time share management body refused an application for membership from a person with a disability or, having accepted such an application, failed to make the accommodation accessible.

Policy and regulatory options

As can be seen from the above, the DDA has limited application in the area of access to and within housing. However, there are some situations in which complaints of discrimination could be successful. While some organisations have called for amendments to the legislation to clarify coverage, there is currently no indication of Commonwealth Government action being taken in this area.

As you will be aware, a number of Commonwealth/State/Territory Government and Local Government initiatives are already operating around Australia . These include specific purpose housing programs, developer education programs, incentives and, in a growing number of cases, local planning tools designed to ensure certain percentages of Class 2 developments provide for accessible or adaptable housing.

These initiatives, however, are seen as fragmented and inconsistent and are considered by many to be insufficient to address the growing need for 'lifetime' housing for people with disabilities and the ageing population in our community.

I note that overseas there are a number of examples where governments are addressing this issue through regulation. I will be interested to read about such initiatives and their relevance to the Australian housing market in your report.

In her address to the National Conference of the Royal Australian Institute of Architects in April 2005, the Federal Minister for Ageing, the Hon Julie Bishop said:

This means we must design and develop inclusive communities that enable people to continue to contribute and participate no matter what their age.

Design features for a society of all ages might include providing spaces and facilities to encourage social and physical activity, and 'universally designed' homes that are accessible for all ages and abilities.

I support the views of the Minister and look forward to the debate that will be stimulated by the publication of your research report on how we can best achieve that outcome.

As is our usual practice I will be posting this submission on our web site and forwarding copies to appropriate organisations.

Yours sincerely

Dr Sev Ozdowski OAM

Human Rights Commissioner

Acting Disability Discrimination Commissioner

25 May 2005