Frequently asked questions: Access to premises

Last updated 2014

See also the material linked from our access to premises page for more detailed resources including Commission advisory notes and policy papers, comlpaint outcomes, and links to other resources.

What does the Disability Discrimination Act say about access to premises?

Access to premises is covered principally by section 23 of the D.D.A.  Note that issues of access to premises can also arise under other provisions of the D.D.A., such as those prohibiting discrimination in employment (section 15), education (section 23), provision of goods, services or facilities (section 24), accommodation (sectin 25), and the administration of Commonwealth laws or programs (section 29).

Discrimination under section 23 includes

  • refusing to allow a person with a disability to enter premises or use facilities that the public is entitled or allowed to enter or use. For example, refusing to allow a blind person accompanied by a guide dog to enter a restaurant
  • imposing less favourable conditions on a person with a disability in entering premises or using facilities. For example, providing wheelchair access only to more expensive seating areas in a theatre, or providing access which is less convenient, dignified or safe than the access provided for other members of the public
  • requiring a person to leave premises because they have a disability. For example, someone who has slurred speech because of a brain injury being treated as if he or she is intoxicated.

Discrimination is unlawful under section 23 except where it can be shown that removing a barrier to access would impose unjustifiable hardship.

How does the DDA relate to the Building Code of Australia and to Australian Standards?

See our advisory note on access to premises for detailed comments on this. See also our guidelines on access to buildings and services for advice on achieving access in practice and our information on draft Disability Standards on Access to Premises which will harmonise the access provisions of the BCA and DDA.

Note that nothing in the terms or effect of the DDA operates to diminish, or excuse non-compliance with, the requirements of other laws. Specifically, the DDA does not operate to import any "unjustifiable hardship" qualification into State or Territory building laws so far as compliance with BCA minimum requirements is concerned. The true position is that both laws have to be complied with in their own terms.

This means that in any case where bulding law and the BCA impose more demanding requirements than the DDA would, the BCA requirement must nonetheless be complied with. In any case where the DDA is more demanding or broader than the BCA, the DDA has to be complied with.

What premises does section 23 of the D.D.A. cover?

Section 23 of the D.D.A. requires non-discriminatory access to premises which the public or a section of the public is entitled or allowed to use.

"Premises" are defined (in section 4) to include "a structure, building, aircraft, vehicle or vessel; and (b) a place whether enclosed or built on or not".

Some of the premises covered by section 23 would include

  • Public footpaths and walkways
  • Educational institutions
  • Shops
  • Banks and other financial institutions
  • Parks
  • Public swimming pools
  • Cafes, restaurants and pubs
  • Government service offices
  • Public transport facilities
  • Hospitals and other medical faciliites
  • Cinemas and sports venues
  • Libraries and other information and advice centres
  • Doctors', lawyers and other professional offices
  • Other premises the public or a part of the public is entitled or allowed to enter or use.

     

Does the DDA cover access to the footpath?

Yes. A footpath would come under the definition of 'premises' and would therefore be covered by section 23 of the Disability Discrimination Act (DDA):

premises includes:

(a) a structure, building, aircraft, vehicle or vessel; and

(b) a place (whether enclosed or built on or not); and

(c) a part of premises (including premises of a kind referred to in paragraph (a) or (b)).

In general local government authorities are responsible for footpaths.
 

What sort of barriers might give rise to a complaint?

  • A business operating on the footpath in a way that causes a barrier to access.
  • The placement of street furniture, poles, bollards or equipment in locations that cause a barrier to access.
  • A business that allows overhanging trees to encroach on the footpath.
  • A tree root that causes an uneven surface.
  • A kerb ramp that does not allow for safe passage
  • A developer who is using the footpath to undertake renovation or building work.


Who can a complaint be lodged against?

Complaints could be lodged directly against a local government authority if it is responsible for the footpath. A complaint could also be lodged against the person or organisation directly creating the access barrier.

In addition a complaint may be possible against the local government authority responsible for the footpath under section 122 of the DDA if it could be argued that the authority was 'permitting' barriers to access by failing to ensure the footpath is clear.

The question of whether or not a local government authority is permitting discrimination would require some evidence they actually have the authority to address the problem.

Any person or organisation subject to a complaint may have a defense if the removal of the barrier would result in an unjustifiable hardship.

Examples of complaints that have been conciliated include:

  • A women who has a vision impairment complained that her local Council was failing to enforce its policies on footpath access against shops that were encroaching onto the footpath with displays. The matter was settled when the Council agreed to issue warnings to businesses identified in the complaint and to revise its policy in consultation with people with disabilities.
  • A man who uses a wheelchair complained that footpaths in his area were difficult and dangerous to negotiate because of bumps, tree roots and café tables and chairs. The matter was settled when the council advised that it has adopted a footpath trading policy requiring clear lines of passage for people with mobility or vision impairments, and had prioritised capital works for footpath repairs.


What is an accessible footpath?

In 2011 the question of what is and what is not unlawful discrimination was clarified in relation to access to buildings through the adoption of the Disability (Access to premises – buildings) Standards 2010 (Premises Standards).

The Premises Standards set out the minimum technical requirements for access to buildings sufficient to meet obligations under the DDA.

So, for example, in relation to passageways within a new building an owner can be confident that if they provide a path of travel with a minimum width of 1000 mm and passing spaces at regular intervals they will be fulfilling the minimum requirements for compliance with the DDA.

At this stage, however, the Premises Standards only apply to buildings covered by the various building classifications found in the Building Code of Australia. Public footpaths do not have a building classification, so while they covered by the definition of ‘premises’ they are not subject to the Premises Standards, but remain subject to the general non-discrimination provisions of the DDA.

This means that there is no mandatory minimum technical compliance standard under the DDA that can be referred to in relation to footpaths.

While the Commission does not have the legal authority to make determinations on what is and is not unlawful discrimination it can provide advice to assist people to avoid discriminating.

This advice concerning footpaths draws on material found in Australian Standards 1428 parts 1 and 2 and overseas guidelines and standards and represents what the Commission considers to be good practice.

For example, the advice draws on Figure 2 of AS 1428.2 that shows the minimum width required for 2 people using wheelchairs to pass each other is 1800 mm.

In providing this advice the Commission is not saying that compliance with the DDA can only be achieved by providing footpaths this wide, but rather a footpath of this minimum width would provide amenity for all users, especially in areas of high pedestrian traffic such as High Street shopping areas, and would likely avoid the possibility of successful complaints.

The Commission notes, however, that topographical issues, historical practices and local conditions will affect the capacity of local government authorities to achieve this level of good practice in all circumstances.

A footpath should, as far as possible, allow for a continuous accessible path of travel so that people with a range of disabilities are able to use it without encountering barriers.

While a footpath necessarily follows the natural topography of the area, in the best possible circumstances a continuous accessible path of travel along a footpath should:

  • Have a gradient of no steeper than 1 in 20
  • Have a cross fall of no steeper than 1 in 40
  • Have kerb cuts with appropriate kerb ramps
  • Incorporate appropriate Tactile Ground Surface Indicators where necessary to ensure adequate safety and orientation at street crossings
  • Have a pedestrian zone with a minimum clear width of 1.8 metres at the narrowest point and a minimum clear height of 2 metres with nothing encroaching into that envelope
  • Be as smooth as possible without raised or cracked paving or tree root damage
  • Have a slip resistant surface during dry and wet conditions

In addition the Commission is of the view that the continuous accessible path of travel should extend from the property line with no obstructions or projections in order to provide the best possible guidance line for all users including people with a vision impairment.

The Commission encourages local government authorities with responsibility for footpaths to develop policies that reflect this good practice, however, individual authorities must make their own decisions on how to proceed based on the needs of local communities, local conditions, historical practice and any unique heritage or environmental issues.

While every local government authority will face different issues, examples of comprehensive policies include the Footpath Trading Policy developed by Yarra City Council at http://www.yarracity.vic.gov.au/Business/Permits-and-regulations/Footpath-trading/

 

Does the D.D.A. apply to access to existing buildings as well as new buildings?

Yes.  Premises covered by section 23 are not restricted to new buildings, or buildings constructed since the D.D.A. was enacted. It may, however, be easier to show that altering existing premises to provide non-discriminatory access would impose unjustifiable hardship than to justify lack of non-discriminatory access in new premises.

Can the Commission grant exemptions or dispensations from responsibilities under the Disability Discrimination Act (DDA) or the Building Code of Australia (BCA) in relation to building access?

Two sets of law covering access to buildings

There are two types of law that cover access to buildings and facilities within them, the Building Code of Australia (BCA) and anti-discrimination law such as the Disability Discrimination Act 1992 (DDA). In most States and Territories there is a similar anti-discrimination law covering access to buildings.

Compliance with the BCA does not necessarily mean the building complies with the requirements of the DDA or State and Territory anti-discrimination laws.

Complaints of discrimination

If an organisation or business operates out of a building that does not provide equitable access for people with disability they may be subject to a complaint of discrimination, even if the building complies with the BCA.

If a complaint is made to the Australian Human Rights Commission, the Commission is responsible for attempting to conciliate an agreement between the parties. If a conciliated agreement is not possible the complainant can take their complaint to the Federal Court or Federal Magistrates Court.

Defences of unjustifiable hardship

An organisation or business might be able to successfully defend itself against a DDA complaint if it could show a Court that providing access would cause an 'unjustifiable hardship'.

A Court would consider many issues when considering a defence of unjustifiable hardship including those of cost, technical difficulties, use of the building and the effect the proposed changes might have on particular heritage features.

The question of whether or not a defence of unjustifiable hardship exists can only be determined by the Federal Court or the Federal Magistrates Court.

Power to grant permanent exemptions or dispensations

The Commission is happy to provide advice on the application of the DDA to buildings and the unjustifiable hardship provisions, however, it cannot grant permanent exemptions or dispensations from responsibilities under the DDA on the grounds of unjustifiable hardship, the authority to do that rests with the Courts.

It is not appropriate, therefore, for a Council or for a building certifier to make an approval for development conditional on the Commission granting an exemption for unjustifiable hardship.

Power to grant Temporary Exemptions

The DDA allows the Commission to consider applications for Temporary Exemptions from the DDA for up to five years. However, the Commission uses this power to provide protection from complaints while organisations and businesses are in the process of fixing an identified access problem.

For example, a business might say that they have plans to do major renovations in 18 months time at which point they will address access problems. The business might seek a Temporary Exemption for example for 18 months on condition that they address access problems during the period of the temporary exemption.

The Commission has not used the Temporary Exemption power to grant a permanent exemption or dispensation because of an unjustifiable hardship claim.

Power to grant exemptions or dispensation from the requirements of the BCA

The Commission has no power to grant exemptions of dispensations from the requirements of building regulation, including from the requirements of the BCA.

Generally speaking, if an access feature is required by the BCA, such as an accessible toilet or an accessible main entrance, it must be provided as there is no broad power for any development or building certifier to provide exemptions or dispensations.

It is possible, however, for building certifiers to consider proposals for what the BCA refers to as an 'Alternative Solution' to the deemed-to-satisfy requirements of the BCA. An Alternative Solution might deliver the Performance Requirements of the BCA but not strictly comply with the deemed-to-satisfy provisions.

Again, while the Commission is happy to offer its advice, it has no authority to certify whether or not an Alternative Solution is acceptable or meets legal requirements.

In some States and Territories, however, there may be a mechanism to appeal full application of some aspects of the BCA. The local council planning department will be able to advise if there is such an appeal mechanism.

Access policies requiring a higher level of access than that in the current BCA

In many Councils an Access Policy or Development Control Plan (DCP) has been developed to try to improve access to a level considered to be more consistent with the requirements of the DDA and to encourage best practice.

For example, some Access policies require buildings to have doorways wider than the current BCA, or might require more circulation space in accessible toilets than the current BCA.

Some Councils and building certifiers are concerned that if they approve a development which is later subject to a discrimination complaint, they might find themselves also subject to a complaint because they approved the development.

Having an Access Policy or DCP can be seen as one way of reducing the chances of a complaint by requiring developments provide access at a level more consistent with the DDA.

It should be noted that the current BCA sets only minimum legal requirements for access in order to obtain building approval, but does not prevent greater levels of access being provided to achieve best practice, to meet the requirements of a particular equity policy, or to better meet the standards of the DDA.

Appeals against the requirements of Access Policies or DCPs

The Commission has supported those Councils who have developed an Access Policy or DCPs to try and overcome inconsistencies between the BCA and the DDA.

However, the Commission also believes that Councils need to develop clear processes that allow developers to appeal against the additional requirements if they believe it would be too onerous.

If an access feature is not required by the BCA, but is required because of a Council's Access Policy or DCP, an appeal should not be made to the Commission but rather should be made to the Council, asking it to exercise discretion in the application of its policy.

A Council may decide to allow a development, even though it is not fully compliant with the additional requirements of their Access Policy or DCP, because it believes the requirement would be too onerous.

The Council would only face a liability if their decision was proved to have been wrong following a successful complaint against the developer.

The Commission believes that Councils are in the best position to make those judgements and that while the Commission is happy to offer its advice on the application of the DDA to buildings, Councils should not refer developers to the Commission for some form of 'determination' or 'certification' which it cannot give.

The best protection for Councils exercising the authority they have is to have a clear appeal mechanism and to vigorously assess any appeals.

Achieving greater consistency between the BCA and the DDA

The Australian Government is considering proposals for a Disability Standard on Access to Premises (Premises Standards) which would be formulated under the DDA.

The proposed Premises Standards would harmonise the requirements of the BCA with industry's existing obligations under the DDA, thus providing certainty to developers, certifiers, building owners and others, that compliance with the BCA would also mean compliance with the DDA in relation to new building work.

Acting in accordance with the Premises Standards would be a defence to any complaint under the DDA in relation to the matters covered by the Standards.

Does the Commission conduct access audits?

No. Contacts for access consultants can be found however at http://www.access.asn.au .

Does the DDA apply to heritage buildings?

Yes. Registration or claim of heritage value in a building or other items does not create an exemption from the DDA and is not in itself a defence.

As shown by decisions under the DDA to date, however, heritage issues can be taken into account in determining whether barriers to access are unreasonable (which is one of the elements required before a finding can be made of indirect discrimination), and can also be taken into account in relation to the defence of unjustifiable hardship where this applies. ( See the summaries of complaint termination decisions under the DDA.)

If alterations to premises to provide full and equitable access would involve the destruction or removal of significant heritage value, in some circumstances making these alterations could be found to involve unjustifiable hardship. Analysed another way, failure to remove the barriers concerned by making these alterations might be found not to involve any unreasonable condition or requirement.

This does not mean that heritage concerns will be accepted as outweighing the need to provide equal access in any particular case. Organisations which occupy or are responsible for heritage buildings need to ensure that they have looked closely at alternative means of providing equal access which are not prevented by heritage considerations. This may include:

  • taking advice from experts or organisations with relevant expertise on sympathetic means of altering heritage premises to provide access
  • where the premises are used to provide goods or services, identifying alternative or supplementary means of providing access to those services, to reduce the effect of limitations in access to the premises in excluding people from access to the goods or services concerned.

If heritage buildings are not readily and economically able to be modified to provide equitable access, then unless the heritage value of the building is an essential part of the business, consideration should be given to moving to alternative premises better suited to modern requirements including disability access.  This is particularly the case for persons or organisations administering Commonwealth Government laws or programs where the defence of unjustifiable hardship does not apply.

It should be remembered that the main purpose of a building open to the public and used by government or business is to serve the public - which both in law and in fact includes people with disabilities. Heritage values which might justify preservation of a building do not necessarily justify modern business or government activities being conducted there. After all, the heritage value of premises which failed to meet modern human rights standards in other respects - such as gallows or inhumanely small and dark cells - may require the preservation of the premises, but would not be argued as requiring or justifying their continued use for their original purpose.

Who can complain about an inaccessible building?

Complaints under the DDA can only be made by or on behalf of a person or persons aggrieved by the act of discrimination concerned. In the case of premises open to the public but inaccessible to people with a disability:

  • a purely moral or in principle grievance is not sufficient
  • complainants do not need to have evidence of actually making a futile attempt to enter inaccessible premises, if they can claim credibly that but for the lack of access they would have used the premises, or at least that they have been deprived of a real opportunity
  • the existence of other accessible premises elsewhere (or other accessible entrances to the same premises) or other means of access to the services available through premises (such as by phone or internet) does not mean that a person is not aggrieved by inaccessibility of the premises concerned, but is likely to be relevant to issues of unjustifiable hardship in making particular premises accessible and to the level of any damages which could be awarded or negotiated
  • complainants do not need to be existing customers of a business such as a bank (whose premises are also open to the public to seek information as potential customers) to be aggrieved by a lack of access to the premises of that business, but
  • complaints which indicate in their terms that the complainant has not attempted to use and has no intention of using the premises concerned will have to be terminated as not being from an aggrieved person (see complaint termination decisions confirming this).

Do accessible toilets have to be reserved exclusively for people with disabilities?

No. There is nothing in the DDA to mandate accessible toilet facilities being exclusively for use by people with disabilities - so long as in high use areas there are sufficient numbers of accessible facilities to give users with disabilities equivalent convenience of access.

Where there are multiple toilet facilities, venues may well make their own decisions to reserve accessible facilities for use by people with disabilities only, or to implement a priority system. That is however a matter for management decision in the circumstances of each venue, rather than for the DDA. Other users without disabilities may likewise decide voluntarily as a matter of courtesy not to use an accessible toilet if possible where another toilet is provided, to avoid delaying a person who does not have a choice. Again, however, that is not a matter for the DDA.

Of course, the only way to ensure absolutely equal access would be to require that each and every toilet be accessible - but no one has argued that the DDA or other laws require that, in recognition of the additional space that an accessible toilet facility requires.

The position where parking spots are reserved for use by people with disabilities is different. A parked car typically remains in place much longer than a person using a toilet does, so that parking in "disabled" spaces by drivers without a disability can effectively deny people with a disability access at all, rather than only requiring a short delay.

Does a barrier have to be permanent to be unlawful?

No.

(Suggestions to this effect in one case under the Queensland Anti-Discrimination Act, Hosking v Lachlaur Pty Ltd t/as McDonald's Atherton , should not be relied on in relation to the DDA.)

The questions to be answered in finding whether there is indirect discrimination are:

  • was a condition or requirement imposed;
  • was the person with a disability able to comply with it; and
  • was it reasonable.

There is no further question "was it permanent or temporary" stated or implicitly required in the legislation .

Temporariness of a barrier may be relevant to reasonableness in some cases but not in others.

  • For example, equipment such as lifts may unavoidably suffer mechanical failure and be temporarily out of service. This may be found not to impose an unreasonable barrier so long as reasonable measures are taken to minimise such occurrences, including the equipment being well maintained and regularly inspected.
  • But it is not at all likely to be a good defence to a claim of discrimination that "the chairs were only stacked there temporarily", when a person urgently needs but cannot enter an accessible toilet because it has been used as a storeroom .

The selection and design of the facility etc may also be relevant to reasonableness of a temporary failure to provide access. While it may be reasonable and unavoidable for the performance of any device or facility to degrade between maintenance points, this does not necessarily mean it is reasonable for it to start at the minimum performance required by access standards when it is in new or freshly maintained condition and degrade below that point. Where possible, it would be reasonable to expect that "best" performance will be above the minimum performance levels required for access so that expected minimum performance will still not be below such minimum levels.

Does the DDA cover access to the footpath?

Yes. A footpath would come under the definition of 'premises' and would therefore be covered by section 23 of the Disability Discrimination Act (DDA):

premises includes:

(a) a structure, building, aircraft, vehicle or vessel; and

(b) a place (whether enclosed or built on or not); and

(c) a part of premises (including premises of a kind referred to in paragraph (a) or (b)).

In general local government authorities are responsible for footpaths.

What sort of barriers might give rise to a complaint?

  • A business operating on the footpath in a way that causes a barrier to access.
  • The placement of street furniture, poles, bollards or equipment in locations that cause a barrier to access.
  • A business that allows overhanging trees to encroach on the footpath.
  • A tree root that causes an uneven surface.
  • A kerb ramp that does not allow for safe passage
  • A developer who is using the footpath to undertake renovation or building work.


Who can a complaint be lodged against?

Complaints could be lodged directly against a local government authority if it is responsible for the footpath. A complaint could also be lodged against the person or organisation directly creating the access barrier.

In addition a complaint may be possible against the local government authority responsible for the footpath under section 122 of the DDA if it could be argued that the authority was 'permitting' barriers to access by failing to ensure the footpath is clear.

The question of whether or not a local government authority is permitting discrimination would require some evidence they actually have the authority to address the problem.

Any person or organisation subject to a complaint may have a defense if the removal of the barrier would result in an unjustifiable hardship.

Examples of complaints that have been conciliated include:

  • A women who has a vision impairment complained that her local Council was failing to enforce its policies on footpath access against shops that were encroaching onto the footpath with displays. The matter was settled when the Council agreed to issue warnings to businesses identified in the complaint and to revise its policy in consultation with people with disabilities.
     
  • A man who uses a wheelchair complained that footpaths in his area were difficult and dangerous to negotiate because of bumps, tree roots and café tables and chairs. The matter was settled when the council advised that it has adopted a footpath trading policy requiring clear lines of passage for people with mobility or vision impairments, and had prioritised capital works for footpath repairs.

What is an accessible footpath?

In 2011 the question of what is and what is not unlawful discrimination was clarified in relation to access to buildings through the adoption of the Disability (Access to premises – buildings) Standards 2010 (Premises Standards).

The Premises Standards set out the minimum technical requirements for access to buildings sufficient to meet obligations under the DDA.

So, for example, in relation to passageways within a new building an owner can be confident that if they provide a path of travel with a minimum width of 1000 mm and passing spaces at regular intervals they will be fulfilling the minimum requirements for compliance with the DDA.

At this stage, however, the Premises Standards only apply to buildings covered by the various building classifications found in the Building Code of Australia. Public footpaths do not have a building classification, so while they covered by the definition of ‘premises’ they are not subject to the Premises Standards, but remain subject to the general non-discrimination provisions of the DDA.

This means that there is no mandatory minimum technical compliance standard under the DDA that can be referred to in relation to footpaths.

While the Commission does not have the legal authority to make determinations on what is and is not unlawful discrimination it can provide advice to assist people to avoid discriminating.

This advice concerning footpaths draws on material found in Australian Standards 1428 parts 1 and 2 and overseas guidelines and standards and represents what the Commission considers to be good practice.

For example, the advice draws on Figure 2 of AS 1428.2 that shows the minimum width required for 2 people using wheelchairs to pass each other is 1800 mm.

In providing this advice the Commission is not saying that compliance with the DDA can only be achieved by providing footpaths this wide, but rather a footpath of this minimum width would provide amenity for all users, especially in areas of high pedestrian traffic such as High Street shopping areas, and would likely avoid the possibility of successful complaints.

The Commission notes, however, that topographical issues, historical practices and local conditions will affect the capacity of local government authorities to achieve this level of good practice in all circumstances.

A footpath should, as far as possible, allow for a continuous accessible path of travel so that people with a range of disabilities are able to use it without encountering barriers.

While a footpath necessarily follows the natural topography of the area, in the best possible circumstances a continuous accessible path of travel along a footpath should:

  • Have a gradient of no steeper than 1 in 20
     
  • Have a cross fall of no steeper than 1 in 40
     
  • Have kerb cuts with appropriate kerb ramps
     
  • Incorporate appropriate Tactile Ground Surface Indicators where necessary to ensure adequate safety and orientation at street crossings
     
  • Have a pedestrian zone with a minimum clear width of 1.8 metres at the narrowest point and a minimum clear height of 2 metres with nothing encroaching into that envelope
     
  • Be as smooth as possible without raised or cracked paving or tree root damage
     
  • Have a slip resistant surface during dry and wet conditions

In addition the Commission is of the view that the continuous accessible path of travel should extend from the property line with no obstructions or projections in order to provide the best possible guidance line for all users including people with a vision impairment.

The Commission encourages local government authorities with responsibility for footpaths to develop policies that reflect this good practice, however, individual authorities must make their own decisions on how to proceed based on the needs of local communities, local conditions, historical practice and any unique heritage or environmental issues.

While every local government authority will face different issues, examples of comprehensive policies include the Footpath Trading Policy developed by Yarra City Council at http://www.yarracity.vic.gov.au/Business/Permits-and-regulations/Footpath-trading/

 

Does the DDA apply to access for councillors at local council meetings?

Unlike some State laws, the DDA does not have a specific provision dealing with discrimination as a member of a local government body - but if the council chambers are open to the public a complaint can be made under DDA section 23. Even if the chambers are not open to the public, the council may constitute an "association" for the purposes of DDA section 27.

Council chambers are often heritage buildings, but that is not decisive as far as the DDA is concerned, since meetings could be moved, even if the building cannot be readly altered. The effect of the DDA is that inaccessible facilities are best regarded as museum pieces, rather than the location for a working democracy.

Can arts funding bodies be liable for inacessible venues being used?

Since there would generally be power in awarding grants for events to require that they be held in accessible venues, there could well be liability via DDA section 122 for permitting discrimination if that power is not exercised and discrimination results.