DDA in practice
From GPG
Contents |
Following the implementation of the Disability Discrimination Act 1995, there was considerable doubt whether rights of way could be classed as a 'service' and therefore whether they were subject to the provisions of the 1995 Act.
The Disability Discrimination Act 2005 encompasses all public authority functions so rights of way now appear to be covered. The Act has not given local authorities any new powers relating to structures on public rights of way.
This guidance is based on the interpretation of the legislation and aims to give practical advice to rights of way practitioners but it should be noted that case law is required for judicial clarification.
Statutory Duty to Maintain
Section 41(1) of the Highways Act 1980 states that, "the authority who are for the time being the highway authority for a highway maintainable at public expense are under a duty (...) to maintain the highway." Clearly this duty is owed to disabled users but there is little judicial authority in relation to rural paths.
Section 58 of the Highways Act 1980 requires the highway authority, in assessing its duty to maintain, to have regard to the character of the way. In addition the authority should consider what traffic can reasonably be expected to use the way, which will dictate the standard of repair and maintenance. Generally speaking, the authority should try to ensure that the condition of the highway is in a condition that a reasonable user would expect to find it. (Most commentators suggest that a different standard of maintenance must apply to an unmetalled country footpath and an urban pavement.)
Section 58 presents a difficulty for a disabled user claiming that he is unable to use a public right of way with a buggy (powered mobility scooter) because until a right of way is in a suitable condition to accommodate buggies such use may not be possible, but until it can be used, for the purposes of section 58 it could be argued by the authority that buggies could not be included on the list of traffic that can reasonably be expected to use the way.
Obstructions – lawful and unlawful
The Highways Act 1980 provides highway authorities with various powers to deal with unlawful obstructions. Unauthorised gates and stiles are unlawful obstructions and as such can be removed. However, many obstructions are lawful either through authorisation or because most public rights of way came into being subject to the limitation of structures such as stiles or gates or other physical constraints like 'pinch points'.
Apart from structures, the disabled user may be obstructed by the difficulty of the terrain. There are many situations where either the gradient of the land or surface condition make the use of a way by wheelchair or buggy users impractical. In these cases it would be waste of resources to install expensive structures which allow access if the route is not fully negotiable due to other limitations.
New Structures
Section 69 of the Countryside and Rights of Way Act requires local authorities to have regard to people with mobility problems when authorising structures on public rights of way. For new structures the principle of Gap Gate Stile (British Standard BS5709:2006), should be followed to achieve the least restrictive option. The starting point is no structure at all to allow unhindered access but in practical terms other factors have to be considered such as livestock control, terrain, surface condition and unauthorised vehicles. Authorisation of a structure should not be taken without considering all factors, including level of use and type of user.
Most authorities adopting good practice start from the assumption that a new structure cannot be a stile, it must be a gate and only a kissing gate if a gate would be inadequate for stock control.
It is strongly recommended that a record is kept of authorisations giving details of the type of structure and noting the justification process in relation to users, especially those it may exclude. This would be useful in dealing with any complaints which may arise and in any enforcement action.
A useful defence to the demand for a stile is that the total height of a stile to British Standard (the only one you could possibly authorise) is considerably less than a gate. Sheep, cattle and horses can easily clear a BS stile. Self-closing and securing mechanisms for gates have much improved in recent years and a well-installed gate is therefore more stockproof than a BS stile.
Existing Structures
Under the provisions of Section 69 of the Countryside and Rights of Way Act, authorities are able to enter into agreements with landowners to improve access but under section 69(8), the consent of every owner, lessee or occupier of the land is required before an agreement can be implemented. This means that an authority has no power to insist on removing or replacing existing authorised structures without the consent of the landowner and the provision of 'least restrictive access' should be pursued.
It is good practice never to simply replace a structure 'like for like' without considering whether it can be made less restrictive or whether it is redundant, such as between arable fields or within an enclosed path with structures at the ends. It is not uncommon for a landowner to agree to removal of a redundant structure or for improvement where it does not affect his management of the land.
In practical terms, a landowner may be 'persuaded' to replace a stile with gate, but will only agree to the installation of a small kissing gate. Such a structure obviously limits the use of the highway but allows far greater access than the original stile so the goal of least restrictive access would have been achieved. Even provision of additional steps in a stile or a handpost will make the structure less of an obstruction. It is often forgotten that 'disabled' does not mean wheelchair-bound!
Improvement of Accessibility
Although section 21B(1) of DDA2005 makes it unlawful for an authority to discriminate against a disabled person when carrying out its functions, this is subject to section 59 of the Disability Discrimination Act 1995 so it will not apply in situations where a local authority is exercising a statutory power and has no discretion as to whether or how to exercise that power or has no discretion how to perform its duties. This provision would apply in relation to the authority's power to authorise structures.
Very often the physical condition of the right of way including gradient and width will dictate what improvement can practically be achieved. In some cases it may be possible to improve the situation by creating a greater width but obviously not in constrained circumstances such as where a path runs between houses or along a cliff. Section 62 of the Highways Act 1980 gives highway authorities the power to improve highways maintainable at public expense. Under section 72 of the act, the highway authority also has the power to widen public paths by either a creation agreement or order. Although such work may be desirable, the costs of undertaking it is often prohibitive and authorities choose to use their limited resources to carry out their statutory duties rather than powers.
Under sections 60 to 62 of the Countryside and Rights of way Act, every local authority is under a duty to publish a Rights of Way Improvement Plan. The Plan must include an assessment of the extent to which the public rights of way network meets the present and future needs of the public, including blind people and those with mobility problems (and de facto all disabled people). In preparing the Plan, the authority must consult actual and potential users along with any Local Access Forum within the area. Every Local Access Forum should endeavour to ensure that representatives from local disability groups are invited to sit as a member of the Forum. This, along with other consultation, will ensure that disabled users have their input into the Plan.
Health and Safety
The safety of those using public rights of way is an important consideration which is illustrated by section 66 of the Highways Act 1980. This provision allows local authorities to install barriers, rails or fencing considered to be necessary to safeguard the public.
Section 21(D)(4)(a) of the Disability Discrimination Act 2005 provides a local authority with a justification for non-compliance with the provisions of the act if the action taken is necessary to safeguard the health and safety of others. There are many rights of way, particularly on the urban fringe, which suffer illegal use by motorcycles or other motor vehicles where it may be necessary to install barriers to safeguard lawful users of the way. The choice of barrier should be given serious consideration and selected to permit the widest possible range of access, ideally including large mobility buggies. However, there are many situations where the available width is limited or barriers or gates with moveable parts are vandalised.
In such situations it may be necessary to install a smaller gate or fixed barrier which may prevent larger mobility vehicles if it is to be effective in excluding ilegal users. With the development of more sophisticated buggies it is inevitable that some will not be able to access all types of barrier.
Providing that the danger to the public can be proven and the gate or barrier offers the best possible access, the installation of the structure could be justified even if it prevents access to some users but circumstances and demand must be considered and locations considered individually.
It is equally important to ensure that the danger to the lawful user from illegal use is genuine. There may be a perception of danger based on occasional illegal use that is not truly threatening, especially if balanced against restricted access for lawful users.
As with any authorised structure, it is strongly recommended that records are kept detailing the type of structure and its justification. Factors in the decision for that structure may not be evident or may no longer exist when the situation is re-assessed or a complaint arises.
Conclusion
Most people accept the reality that all rights of way will never be fully accessible to all, particularly where there is a historic element in limitation or in the countryside. Indeed, many disabled users themselves are keen to ensure that a natural or historical environment with its beauties and challenges is not compromised. However, local authorities should endeavour to achieve the best possible access and wherever possible create routes that offer access to all.
