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Have a disability and can’t get your OC to adjust the doors? Supreme Court says it must.

71-year-old Ms Black moved into an apartment in Travancore and developed disabilities which led to a permanent mobility impairment. For three years, Ms Black asked her Owners Corporation to make it easier for her to access her apartment.  She then applied to VCAT for orders requiring adjustment to the building and compensation.

The case at VCAT

Ms Black argued that she had been indirectly discriminated against by the Owners Corporation as it had not accommodated for her access to common property which she paid for.

The Tribunal member inspected the property and Ms Black demonstrated her difficulties in accessing the main door, entry into the car park area, the door to the rubbish area and the doors leading to the courtyard.  She told the Tribunal that she once had to pay a stranger to open the main entry door for her after dark.

Section 45(2) of Equal Opportunities Act 2010 (the Act) obliges a service provider to “make reasonable adjustments unless the person could not participate in or access the service or derive any substantial benefit from the service even after the adjustments are made.” and the list of relevant considerations are listed in subsection (3).

VCAT held that the Owners Corporation was a “service provider” under the Act, and sections 45 and 46 “impose a positive duty on service providers to make reasonable adjustments to accommodate the needs of persons with a disability.”

The Tribunal decided “that when a service recipient like Ms Black notifies the service provider that she is prevented by disability from accessing, participating in or benefitting substantially from a service, the service provider must consider the adjustments necessary to allow her to access participate in or benefit from the service.”

Given the Owners Corporation’s failure to accommodate for Ms Black’s needs despite numerous requests, VCAT held that the Owners Corporation had in fact discriminated against Ms Black.

The Owners Corporation Manager put on evidence to say that the works recommended by Ms Black’s designer would costs about $42,000.

On the disposal of her garbage, the caretaker had collected Ms Black’s rubbish for the last two years so the Owners Corporation’s Manager agreed for this arrangement to be on a permanent basis.

The entry door to the building and door to the car park was ordered to be modified as each of the lots would benefit from a door which could be easily opened, and Ms Black would no longer suffer from frustration, indignity and fear.

As for the door to the courtyard, the Tribunal considered the cost of widening and automating the doors in a sum exceeding $11,000 was reasonable given the means of the Owners Corporation.  Importantly, Ms Black is entitled to the courtyard for which paid maintenance fees.

Then, who pays for then adjustments?  Well, the Tribunal couldn’t form a view because the Owners Corporation refused to give evidence about their expenses.  The Owners Corporation had indicated that they would raise a special levy to raise these funds.

Despite the difficulties in putting a dollar figure to hurt and humiliation, the Tribunal ordered the Owners Corporation to pay Ms Black $10,000.

Appeal to the Supreme Court

The Owners Corporation then appealed the decision to the Supreme Court of Victoria but it was ultimately unsuccessful.

In a huge win to the disability community, the Supreme Court held that owners corporations must undertake modification works to apartment buildings for owners and occupiers with a disability, and that sections 44, 45 and 46 of the Act did in fact apply to owners corporations in respect of the common property it manages and maintains for lot owners.

The Victorian Equal Opportunity and Human Rights Commission participated as amicus curiae and submitted that the definition referred to ‘access and use of any place that members of the public are permitted to enter’ would include common property such as driveways, stairs, paths, passages, lifts and lobbies with which Justice Richards agreed.

In addition, Justice Richards referred to section 32(1) of the Charter of Human Rights and Responsibilities 2006 (Vic) which states that all statutory provisions must be interpreted in a way that is compatible with human rights supporting the ordinary interpretation of section 45 which simply requires a service provider to make reasonable adjustments for a person with disability –meaning automate the doors.

 

Read the case at Owners Corporation v Black [2018] VSC 337