Supreme Court Rules in Favour of Disabled Resident

STRATA
12-Feb-2019

The Supreme Court of Victoria has ruled in favour of Anne Black, a disabled tenant, in the case Owners Corporation v Anne Black. The effect of the ruling is expected to reverberate throughout the property industry – and is considered a big win for disabled owners, occupiers and guests.

"Owners corporations are vitally important bodies that can help Victorians use, access and enjoy their homes and the world around them. This case confirms their obligations towards people with a disability, including making sure they can access their home and public spaces." – Commissioner Kristen Hilton

The Human Rights Commission took part in the case as a friend of the court in order to supply the court with expert advice.

For example, the Commission submitted that the right to equality protected by section 8 of the Charter of Human Rights and Responsibilities includes the right to effective protection from direct or indirect discrimination – in this case, related to the use of common property of an owners corporation.

Some of the noteworthy Acts used in the case were:

  • Equal Opportunity Act 2010 (Vic)
  • Owners Corporation Act 2006 (Vic)
  • Building Act 1993 (VIC)
  • Building Interim Regulations 2017
  • Disability Discrimination Act 1992

Case Background

The crux of the issue involved Anne Black, who lives in an apartment owned since December of 2013. Ms. Black is a 76-year-old woman who is legally blind, and developed disabilities that greatly affected her mobility in 2015.

Her need to use a wheelchair or scooter to exit and enter the building that she calls home made her life difficult; she was often forced to wait for another resident or even stranger to help her into the building.

Arguments From Both Sides

Ms Black's argument centred around her belief that the owners corporation discriminated against her due to her disability, based on the Equal Opportunity Act 2010 – specifically section 53 (providing accommodation) and section 44 (provision of goods and services).

Ms Black called for 7 heavy swing doors in her building to be adjusted for automatic or sensor-activated operation. Citing section 44 of the Equal Opportunity Act 2010 – service provision – she submitted that the OC had a duty to ensure her ability to access common areas.

The owners corporation’s defence was an argument that it did not provide services – and that any services provided were solely for enjoying ownership of the lot.

The OC also claimed that sections 44 and 45 of the Equal Opportunity Act 2010 did not apply to them due to section 56 – which calls for owners corporations to allow alterations to be made by an owner or occupier.

Outcome

The Supreme Court of Victoria ruled owners corporations could provide a service under the Act, and are obliged to make reasonable adjustments for people with a disability. The court found that the Act’s definition of ‘services’ did not exclude access to – and use of – common property.

The ruling will see the installation of automated doors and ramps in the building – as well as a payment of $10,000 to Ms. Black.

The building in question was compliant with building codes when it was built over a decade ago, though it would not meet today’s requirements in relation to inclusive accessibility.

For a full read of the VCAT decision, visit this page on the Victorian Civil and Administrative Tribunal website.

Industry Ramifications

 

The ruling provides clarity on the responsibilities of an OC in relation to accessibility.

An owners corporation is a ‘service provider’ as defined by sections 45 and 46 of the Equal Opportunity act 2010 – and responsible for organising and paying for works that alleviate issues disabled persons have with accessing common property.

Section 56 is now understood to call for owners corporations to agree to lot owners paying for the works as opposed to the sole responsibility for payment automatically being on the lot owners.

Owners corporations should plan for any potential alterations their common properties might require due to the outcome of this case.

Melcorp Strata ensure that the owners corporations we manage are compliant with relevant legislation and we consider resident inclusion and safety as paramount. Do you need OC management that is always up-to-date and dedicated to harmonious and inclusive communities? Contact us today at 03 8638 1822.

Source: Victorian Equal Opportunity & Human Rights Commission

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