Complying with the Commonwealth Disability Discrimination Act 1992
This is not to be construed as providing legal advice, or as prescribing how any particular Owners Corporation (OC) should manage its affairs. It is a summary, of how some important concepts are provided for in the legislation, and how owners corporations might take account of those provisions when formulating their management philosophies and procedures.
Many unit owners might be surprised to know that OC's have responsibilities in relation to persons with disabilities. The Unit Titles (Management) Act 2011 (The Act) gives OC's all of the functions given them by the Act and other relevant territory legislation, but it also requires that they comply with all other applicable laws in force in the territory. This includes a substantial number of Commonwealth Acts, including the Disability Discrimination Act 1992 (DDA). The Act provides that the Executive Committee (EC) of an OC can approve minor uses of the common property providing that such use does not unreasonably interfere with the reasonable use of the common property by other members of the corporation (schedule 2.4). This authority vests in the committee, and may be exercised as the committee considers appropriate, unless directed otherwise by a resolution of the corporation (section 35 (3). The committee must obey such a direction, but is not obliged to seek such direction.
An October 2013 case in the ACT arose where a tenant had over two years sought permission, at his own expense, to lay a 1.1m wide x 2.1m long concrete strip on the common property garden with the objective of improving the access to the unit. The affected area flooded every time it rained and this posed a slip risk to the tenant who has a medical condition we’ll call “brittle bones”.
The EC, guided by two separate strata managers, considered that the proposed works, although unlikely ever to interfere with other owners’ use of the common property, did not meet the test of “minor use” as defined in Schedule 2.4 of The Act, and accordingly could not be approved by the committee. Instead, the committee put motions, two years in a row, to the OC's Annual General Meeting (AGM) to grant the owner a “special privilege” for the concreting. A “special privilege” can only be granted by an unopposed resolution (section 22). Both resolutions were defeated.
Noting that the OC had, over an 18 month period, failed it’s responsibility to maintain the common property by remediating the flooding, the owners, citing Work Health and Safety obligations, sought approval directly from the EC’s to lay the concrete strip at their own expense.
The EC could not agree, on the one hand, how to remediate the flooding without approving the laying of the concrete, and on the other, how to do so without disobeying a resolution of the corporation as they are bound to do by section 35 (3) (a) of the Act.
The committee and the manager eventually concluded that it would not be fair to other owners to make changes to the common property to suit one resident, and accordingly the only available solution was for the tenant to park in the visitors’ car parks until sometime in the future when a special privilege could be considered for all owners and for the owner for take the case to the ACT Civil and Administrative Tribunal (ACAT) if they felt the decision was unjust or unfair.
Section 19 (2) of the Act demands that the OC must give all members of the corporation opportunity for the reasonable use and enjoyment of the common property. However, neither of the managers nor the EC appear to have considered whether their responsibility under Act to maintain the common property extended to remediation of flood prone areas of the common property that posed a threat to a resident. Nor did they take account of the provisions of the DDA as they believed that the Act was all that mattered to OC's. The tenant lodged a complaint with the Australian Human Rights Commission, citing both parties.
Section 25 Part 2 (d) of the DDA states that it is unlawful to discriminate:
(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.
Under this part of the DDA, if the landlord is willing to allow a tenant (at their own expense) to undertake necessary work, but the Body Corporate refuses to allow the landlord to give permission or refuses to allow the work to proceed, a complaint of discrimination might be made against the Body Corporate under section 122 of the DDA which states:
“A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2 or 3 of Part 2 is, for the purposes of this Act, taken also to have done the act.”
In this case, the complaint included the manager as the tenant perceived that the manager had induced the EC to act unlawfully.
The Disability Discrimination Commissioner, Graeme Innes AM, indicated that in his view, the absence of a Body Corporate by-law (Rule), would not justify refusal to allow a reasonable adjustment. He is of the view that it may be possible for a person with a disability to pursue a claim under sections 25 and 122.
At the conciliation hearing the EC agreed to the tenant’s request that the tenant provide owners with full details behind the reason for his request and to seek approval for the concrete strip at a general meeting to be held early in 2014.
In a recent Queensland case the owner’s complaint was upheld and the body corporate ordered not only to make the necessary adjustment, but also to pay compensation of $25,000.
With the ageing of Australia’s population, and the number of people moving into strata complexes as they get older, it’s time for owners corporations to look at legislation further afield than the Act in order to meet all their obligations to owners and tenants.
In this case, it could be argued that the problem arose because the EC misinterpreted the power that the Act gives it to make common sense decisions in the interests of safe and peaceful occupancy of the unit plan and because the manager encouraged that misinterpretation. The need for the concrete strip was obvious. That it would not interfere with other resident’s use and enjoyment of the common property was clear. It could thus have been further argued that the committee should not only have approved the work but that the work should have been paid for by the corporation. A resolution by a general meeting countermanding that action would have been a worthy subject to be referred to the ACAT, where the committee’s decision would almost certainly have been upheld.
Similarly, a decision by a general meeting to again refuse permission for the work, having had the circumstances of and justification for it explained, would seem to be the basis for a dispute between the member and the OC which the ACAT would almost certainly resolve in favour of the owner.