Supreme Court of Appeal

Owners Corporations must make reasonable adjustments for persons with a disability – but who should pay?

John Corcoran AM

The Supreme Court of Victoria has found that Owners Corporations provide ‘services’ to Owners and Occupiers within the meaning of the Equal Opportunity Act 2010.  This means they cannot discriminate in the provision of these services, and must make reasonable adjustments for persons with a disability.

Facts

Anne Black had owned and occupied a lot in an apartment building overseen by Owners Corporation OC1-POS539033E since December 2013.

In 2015 Anne acquired a disability, and needed to use several mobility aids including a scooter and crutches.  As a result, she could not use the doors to the apartment building and car park properly. Anne asked the Owners Corporation to modify the building’s common property to make it more accessible.  The Owners Corporation refused, but allowed Anne to make modifications if she paid for them.

Anne argued that the Owners Corporation was providing a service under section 44 of the Equal Opportunity Act 2010 (Vic) (“Act”) in maintaining the common areas, and that it was discrimination under section 45 of the Act to refuse to pay for the reasonable adjustments. The Victorian Equal Opportunity and Human Rights Commission joined the proceeding as amicus curiae in support of these arguments.

The Owners Corporation (appealing the VCAT decision) argued that they were not supplying a service within the meaning of the Act, and consequently were not obliged to make reasonable adjustments.  Instead, they said that only the provisions of the Act which specifically applied to Owners Corporations, namely section 56, should apply. 

Owners Corporations as service providers 

Under section 44 of the Act, a person must not discriminate against another person ‘by refusing to provide goods or services to the other person, or in the terms for which goods or services are provided to the other person service.’  Under section 45, a service provider ‘must make reasonable adjustments for [a] person with a disability’.

Both Senior Member Steele of VCAT at first instance, and Justice Richards of the Supreme Court on appeal, conclusively found that an Owners Corporation does provide a service within the meaning of the Act.  The primary reason was that the term ‘service’ has historically been given a very wide meaning under anti-discrimination law. 

The Owners Corporation attempted to argue that section 56 of the Act, which explicitly addresses discrimination by Owners Corporations who refuse to allow alterations, was the only section which applied to them.  Unlike sections 44 and 45, section 56 does not require an Owners Corporations to make reasonable adjustments.  This was also conclusively rejected by Justice Richards, who, looking at the text of the Act and extrinsic materials, concluded that sections 56 and 44 both applied to Owners Corporations.

Further questions 

The Court was not asked to determine whether the additional ramps and alterations to the doors of the building were reasonable adjustments.  The issue of what might constitute a reasonable adjustment, and what might not, was not addressed by the Court and the only issue considered was whether an Owners Corporation provides a ‘service’ within the meaning of the Act.

For more information, please contact John Corcoran, Principal on (03) 9609 1504.

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