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Owners Corporations on the hook for discrimination – Are you up to speed?

Are you involved in an owners corporation managing buildings in Victoria?

Have you been operating on the assumption that you are only required to make alterations to common property for owners or occupiers with a disability if those alterations are at the expense of the owner or occupier and do not require alteration of other lots or negatively impact use of common property?

The Supreme Court of Victoria, in the decision of Owners Corporation OC1-POS539033E v Black [2018] VSC 337, has confirmed this assumption is incorrect. Owners corporations, as providers of a service, are subject to the general requirement to make reasonable adjustments for persons with a disability and not discriminate in the course of providing their services, under the Equal Opportunity Act 2010 (Vic) (EO Act).

WHAT HAPPENED?

Ms Black lives in an apartment. Since moving in to that apartment, she has developed a disability, which requires her to use a wheelchair or scooter. She is not able to easily (if at all) make use of the door and ramp to the car-park, doors to the main entry, rubbish disposal and outdoor area, as a consequence of her disability. The two respondent owners corporations are responsible for these common area access points.

Ms Black requested modifications to these access points to accommodate her reliance on a wheelchair or scooter for mobility. The owners corporations refused this request.

WHAT DID VCAT HAVE TO SAY?

Ms Black applied to the Victorian Civil and Administrative Tribunal (VCAT) for orders including that the owners corporation modify the doors and ramp to the car park. She claimed that the owners corporations had breached three provisions of the EO Act:

  • s 44 – which prohibits discrimination in the provision of goods and services
  • s 45 – which requires service providers to make reasonable adjustments for persons with a disability
  • s 56 – which requires owners corporations to allow owners or occupiers with a disability to make reasonable alterations to common property, subject to listed requirements (including that the owners or occupier bear the cost of those alterations).

The owners corporations opposed this application on two bases:

  • first, that they were not providers of a service (as defined in s 4) and therefore s 44 and 45 did not apply
  • second, that s 56 of the EO Act is the only provision under which an owners corporation can be required to make alterations to common property.

In an interlocutory decision, VCAT rejected both of these assertions. The owners corporations appealed to the Victorian Supreme Court.

WHAT ABOUT THE SUPREME COURT?

The Supreme Court granted leave to appeal, but dismissed the appeal – upholding VCAT’s decision. The Court’s key findings were that:

  • the term ‘services’ is to be given a wide meaning, having regard to the broad definition in s 4 and the beneficial nature of the EO Act
  • the functions of an owners corporation include providing services, such as provision of access to the apartments in a building, via common property (whether or not that common property is accessible by the public)
  • s 56 of the EO Act does not exhaustively deal with the issue of alterations to common property of an owners corporation (to the exclusion of s 44 and 45)
  • the text of the EO Act, its context and legislative purpose (including to eliminate discrimination to the greatest possible extent) are consistent with the view that s 44, 45 and 56 can all apply to owners corporations, in respect of common property.

WHAT DOES THIS MEAN FOR OWNERS CORPORATIONS?

For Victorian owners corporations, this decision confirms that careful consideration will need to be given to requests for alterations or adjustments by owners or occupiers with disabilities.

The question to be asked is not ‘should we allow the alteration at the owner or occupiers expense’?

Rather, it must be determined whether the adjustment requested is ‘reasonable’ and therefore can be made by the owners corporation itself. Matters such as cost and impact on other owners can, of course, be considered in assessing the reasonableness of an adjustment, but will not be determinative.

Section 56 of the EO Act should not be considered to be the ‘code’ for owners corporations, with regard to alterations for common property. Whether the alteration is reasonable must also be considered under s 45 and, if so, the owners corporation should make that alteration.

Particularly in light of the Victorian Government’s commitment to equality for persons with disabilities, as set out in the State Disability Plan 2017–2020, owners corporations should take care not to fall foul of their obligations under anti-discrimination law.

Not sure where to from here? Please contact us for more detailed advice regarding obligations of service providers under the EO Act.

Authors
Ross Jackson | Partner
T +61 3 9258 3526
E ross.jackson@maddocks.com.au
Ali Gallaher | Lawyer
T +61 3 9258 3670
E ali.gallaher@maddocks.com.au

Are you involved in an owners corporation managing buildings in Victoria?

Have you been operating on the assumption that you are only required to make alterations to common property for owners or occupiers with a disability if those alterations are at the expense of the owner or occupier and do not require alteration of other lots or negatively impact use of common property?

The Supreme Court of Victoria, in the decision of Owners Corporation OC1-POS539033E v Black [2018] VSC 337, has confirmed this assumption is incorrect. Owners corporations, as providers of a service, are subject to the general requirement to make reasonable adjustments for persons with a disability and not discriminate in the course of providing their services, under the Equal Opportunity Act 2010 (Vic) (EO Act).

WHAT HAPPENED?

Ms Black lives in an apartment. Since moving in to that apartment, she has developed a disability, which requires her to use a wheelchair or scooter. She is not able to easily (if at all) make use of the door and ramp to the car-park, doors to the main entry, rubbish disposal and outdoor area, as a consequence of her disability. The two respondent owners corporations are responsible for these common area access points.

Ms Black requested modifications to these access points to accommodate her reliance on a wheelchair or scooter for mobility. The owners corporations refused this request.

WHAT DID VCAT HAVE TO SAY?

Ms Black applied to the Victorian Civil and Administrative Tribunal (VCAT) for orders including that the owners corporation modify the doors and ramp to the car park. She claimed that the owners corporations had breached three provisions of the EO Act:

  • s 44 – which prohibits discrimination in the provision of goods and services
  • s 45 – which requires service providers to make reasonable adjustments for persons with a disability
  • s 56 – which requires owners corporations to allow owners or occupiers with a disability to make reasonable alterations to common property, subject to listed requirements (including that the owners or occupier bear the cost of those alterations).

The owners corporations opposed this application on two bases:

  • first, that they were not providers of a service (as defined in s 4) and therefore s 44 and 45 did not apply
  • second, that s 56 of the EO Act is the only provision under which an owners corporation can be required to make alterations to common property.

In an interlocutory decision, VCAT rejected both of these assertions. The owners corporations appealed to the Victorian Supreme Court.

WHAT ABOUT THE SUPREME COURT?

The Supreme Court granted leave to appeal, but dismissed the appeal – upholding VCAT’s decision. The Court’s key findings were that:

  • the term ‘services’ is to be given a wide meaning, having regard to the broad definition in s 4 and the beneficial nature of the EO Act
  • the functions of an owners corporation include providing services, such as provision of access to the apartments in a building, via common property (whether or not that common property is accessible by the public)
  • s 56 of the EO Act does not exhaustively deal with the issue of alterations to common property of an owners corporation (to the exclusion of s 44 and 45)
  • the text of the EO Act, its context and legislative purpose (including to eliminate discrimination to the greatest possible extent) are consistent with the view that s 44, 45 and 56 can all apply to owners corporations, in respect of common property.

WHAT DOES THIS MEAN FOR OWNERS CORPORATIONS?

For Victorian owners corporations, this decision confirms that careful consideration will need to be given to requests for alterations or adjustments by owners or occupiers with disabilities.

The question to be asked is not ‘should we allow the alteration at the owner or occupiers expense’?

Rather, it must be determined whether the adjustment requested is ‘reasonable’ and therefore can be made by the owners corporation itself. Matters such as cost and impact on other owners can, of course, be considered in assessing the reasonableness of an adjustment, but will not be determinative.

Section 56 of the EO Act should not be considered to be the ‘code’ for owners corporations, with regard to alterations for common property. Whether the alteration is reasonable must also be considered under s 45 and, if so, the owners corporation should make that alteration.

Particularly in light of the Victorian Government’s commitment to equality for persons with disabilities, as set out in the State Disability Plan 2017–2020, owners corporations should take care not to fall foul of their obligations under anti-discrimination law.

Not sure where to from here? Please contact us for more detailed advice regarding obligations of service providers under the EO Act.

Authors
Ross Jackson | Partner
T +61 3 9258 3526
E ross.jackson@maddocks.com.au
Ali Gallaher | Lawyer
T +61 3 9258 3670
E ali.gallaher@maddocks.com.au