VCAT decision - 8 February 2018
Ms Black argued that the owners corporation had discriminated against her on the basis of her disability under the Equal Opportunity Act 2010 in the areas of providing accommodation (section 53) and the provision of goods and services (section 44).
Ms Black sought adjustments to be made to 7 heavy swing doors in her building complex so that they could be automatic or sensor activated. She submitted that the owners corporation provides ‘services’ to her, within the meaning of section 44 of the Act, and that they had a positive duty to ensure accessibility to the common areas, by way of providing reasonable adjustments in the provision of services under section 45 of the Act. The owners corporation argued that it did not provide services to the respondent and that any services provided were for the sole purpose of enjoying ownership of the lot.
It also submitted that it was not providing services as the apartment block was private property and not accessible to the general public, and because Ms Black was a member of the owners corporation too. The owners corporation also argued that sections 44 and 45 of the Act had no application to them due to the operation of section 56, which requires an owners corporation to allow alterations to be made by an owner or occupier of a residence. They also argued that section 56 of the Act exclusively and exhaustively regulates discrimination in relation to the common property of an owners corporation.
VCAT found that the owners corporation did provide a service to Ms Black as no other entity was obliged or entitled to improve or renew any door or access way within the common property other than the owners corporation. In relation to sections 44 and 56, the Tribunal noted that there was nothing in the Act that indicated that those provisions were intended to operate exclusively.
Supreme Court decision - 21 June 2018
On 14 March 2018 the owners corporation submitted an appeal to the Supreme Court. The main questions of law that were appealed were whether the owners corporation provides a service for the purposes of section 44 of the Act and whether section 56 operated exclusively and exhaustively in relation to owners corporations. The Commission intervened to assist the court regarding the purpose and interpretation of these parts of the law.
The Supreme Court of Victoria found that owners corporations could provide a service under the Act and are therefore obliged to make reasonable adjustments for people with a disability, or they would risk being found to be discriminatory. The court found that the definition of 'services' in the Act did not exclude access to and use of common property that is not a public space.
The court adopted the Commission's submission that the common property of an owners corporation can include areas that members of the public are permitted to enter. The court stated that it would be 'anomalous' if a visitor to the public parts of common property of an owners corporation has greater protection under the Act than does an owner or occupier to a residential property managed by an owners corporation.
In its decision, the court reiterated that the definition of services is inclusive and should be construed broadly, particularly in light of the beneficial and remedial purposes of the Act. The court confirmed that the Act was enacted with the express purpose of extending the law relating to equal opportunity and protections against discrimination, including its express objective to promote and facilitate the progressive realisation of equality, which left little room to read down general words, such as the meaning of 'services'.
In addition, in relation to the Charter of Human Rights and Responsibilities (the Charter), the court stated that the Charter supports a liberal reading of the Act, as the right to equality in section 8 of the Charter includes the right to equal and effective protections against discrimination. The Commission's submissions that the right to equality protected by the Charter includes the right to effective protection from direct or indirect discrimination (in this case, in respect to and use of common property of an owners corporation) were accepted.
The Supreme Court returned the matter to the VCAT for it to decide whether the adjustments to the apartment doors sought by Ms Black are reasonable.
VCAT decision - 20 December 2018
On 19 December 2018, VCAT handed down its decision in the matter about whether the adjustments sought were reasonable.
VCAT had to determine whether the adjustments that were being sought by Ms Black were reasonable, given all the circumstances. Section 45 of the Equal Opportunity Act 2010 sets out the circumstances that must be considered:
- the person's circumstances, including the nature of their disability;
- the nature of the adjustment required to accommodate the person's disability; and the financial circumstances of the service provider (in this case, the Owners Corporation);
- the effect on the service provider of making the adjustment, including the financial impact of doing so and the number of persons who would benefit from, or be disadvantaged by, doing so;
- the consequences for the service provider of making the adjustment;
- the consequences for the person of the service provider not making the adjustment; and
- any relevant action plan made under the Disability Discrimination Act 1992 (Cth).
VCAT reiterated that sections 45 and 46 of the Act impose a positive duty on service providers to make reasonable adjustments to accommodate the needs of persons with a disability. These obligations apply to owners’ corporations providing services. Accordingly, when a service recipient like Ms Black notifies the service provider that she is prevented by her 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.
Senior Member Steele of the VCAT stated that section 56 of the Equal Opportunity Act 2010, which may have allowed Ms Black to make and pay for the adjustments herself under certain conditions, was not a relevant consideration in assessing whether the requested adjustments were reasonable.
After reviewing the facts and circumstances, VCAT found that the adjustments requested by Ms Black were reasonable. VCAT ordered that the owners corporation to make the requested adjustments within 90 days of the judgement, including installing automatic doors, and adjusting railings and kerbs at the apartment entrance.
VCAT also found that Ms Black had suffered humiliation, stress, anxiety, frustration and embarrassment over a period of three years. This included being unable to access her home from the street without help, being unable to access the car park and being unable to enjoy the use of the courtyard. VCAT ordered that the owners corporation pay Ms Black $10,000.00 in compensation.
VCAT referred to the Commission’s Discrimination and The Law: A Guide for Owners Corporations as a guide the owners corporation could have looked to for information and advice on reasonable adjustments.