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					COMMERCIAL PROPERTY
    WORKSHOPS
    Autumn 2006

  1: Covenants, easements and
  restrictions
  2:           A refresher
  3:           Service charges,
  deposits and escrow
  accounts
  Gavin Poole BA (Hons) AKC
   Louis Mathers LLB (Hons)
     Ben May LLB (Hons)
       11th October 2006
               Asbestos


‚The single greatest cause of work related
deaths in the UK‛  Health and Safety Executive
       Background information

“ Naturally occurring fibrous mineral
“ Asbestos was used in hundreds of different
  products and buildings from 1950’s to the
  mid 1980’s
          Background information

“ Asbestos cement was used up until 1999
“ Typically, there can be a 15-60 years gap
  between first exposure and diagnosis



http://www.hse.gov.uk/asbestos/gallery.htm



  http://www.hse.gov.uk/asbestos/essentials/building.htm
                 Checklist

“   Find
“   Check condition
“   Presume
“   Identify
“   Record
“   Assess
“   Plan
                   What to do with any presumed
                             asbestos?
         Minor damage                                           Good condition
         “The material should be repaired and/or                “The condition of the material should be
         encapsulated                                           monitored at regular intervals
         “The condition of the material should be               “Where practical the material should be
         monitored at regular intervals. Where                  labelled
         practical the material should be labelled.             “Inform the contractor and any other
         “Inform the contractor and any other                   worker likely to work on or disturb the
         worker likely to work on or disturb the                material
         material




         Poor condition                                         Asbestos disturbed

         “Asbestos in poor condition should be                  “Asbestos likely to be disturbed should
         removed                                                be removed



Table taken from HSE guidance ‘A short guide to managing asbestos in premises’
Disability discrimination


      Service Providers
Disability Discrimination Act 1995
             ” Part III
  Provision of goods, facilities and services to
  the public:
“ 2 December 1996 ” unlawful to treat disabled
  people ‘less favourably’.
“ 1 October 1999 ” ‘Reasonable adjustments’ to
  services.
“ 1 October 2004 ” ‘Reasonable adjustments’ in
  respect of physical features.
Disability Discrimination Act 2005


Private clubs and their members

Functions of public authorities
             Definition of disabled

    A disabled person is someone who has a physical or mental
    impairment which has an effect on their ability to carry out
    normal day-to-day activities. That effect must be:

“ substantial (that is, more than minor or trivial);
“ adverse; and
“ long term (that is, it has lasted or is likely to last for at least
  a year or for the rest of the life of the person affected).
          Hidden impairments:

“   Mental illness/mental health problems
“   Learning difficulties
“   Diabetes
“   Epilepsy
“   AIDS
            Economics



There are an estimated 10 million
disabled people living in the UK, with
an annual spending power of over £50
billion.
              Service providers

“ The Act imposes duties on those who provide
  services to the public.
“ It covers services to the public or to a section of
  the public, whether in the private, public or
  voluntary sectors.
“ It does not matter if services are provided free.
“ Under the Act, the provision of services to the
  public includes the provision of goods or facilities
                       Including:
Local councils           Government departments
The emergency services Charities                  Voluntary organisations
Hotels                              Restaurants
Pubs
Post offices            Banks & building societies
Solicitors                          Accountants
Telecomms Broadcasting organisations
Public utilities                    Hospitals & Clinics
Railway stations                    Airports
National parks                                    Sports stadiums
Leisure centres                                   Advice agencies
Theatres                            Cinemas
Hairdressers                                      Shops
Market stalls                                     Petrol stations,
Telesales businesses                Places of worship
         What is discrimination?

This can occur in two possible ways:
First:
“ service provider treats the disabled person less
    favourably ” for a reason relating to the disabled
    person’s disability ” than it treats (or would treat)
    others to whom that reason does not (or would
    not) apply; and
“ service provider cannot show that the treatment is
    justified.
         What is discrimination?

Second:
“ service provider fails to comply with the duty
   imposed by section 21 of the Act (duty to make
   reasonable adjustments) in relation to the disabled
   person; and
“ service provider cannot show that the failure is
   justified.
     1.‘Less favourable treatment’
“ refusing to provide (or deliberately not providing)
  any service which it offers or provides to members
  of the public; or
“ providing service of a lower standard or in a
“ worse manner; or
“ providing service on worse terms; or
“ failing to comply with a duty to make reasonable
  adjustments if that failure has the effect of making
  it impossible or unreasonably difficult for the
  disabled person to make use of any such service.
  Knowledge of the disability

A service provider may have treated a disabled
person less favourably for a reason related to their
disability even if it did not know the person was
disabled.

The test which has generally been adopted by the
courts is whether, as a matter of fact, this was the
reason why the disabled person was less favourably
treated.
         2.‘Reasonable adjustments’

1.       Changing practices, policies and procedures;
2.       Providing auxiliary aids and services;
3.       Overcoming a physical feature by:
     ”      removing the feature;
     ”      altering it; or
     ”      avoiding it.
4.       Providing services by alternative methods.
    Foreseeing the disability

The act envisages a proactive as opposed to
a reactive approach.

It means identifying potential barriers to
access instead of waiting for a disabled
person to try and fail.
          What is reasonable?

It will vary according to:
“ the type of services being provided;
“ the nature of the service provider and its
   size and resources; and
“ the effect of the disability on the individual
   disabled person.
             What is reasonable?
Factors include…
“ whether taking any particular steps would be effective
   in overcoming the difficulty that disabled people face
   in accessing the services in question;
“ the extent to which it is practicable for the service
   provider to take the steps;
“ the financial and other costs of making the
   adjustment;
“ the extent of any disruption which taking the steps
   would cause.
          What is reasonable?

and…
“ the extent of the service provider’s financial
  and other resources;
“ the amount of any resources already spent
  on making adjustments; and
“ the availability of financial or other
  assistance.
                  Justification
The conditions specified in the Act relate to:
“ health or safety;
“ the disabled person being incapable of entering
   into a contract;
“ the service provider being otherwise unable to
   provide the service to the public;
“ enabling the service provider to provide the service
   to the disabled person or other members of the
   public; and
“ the greater cost of providing a tailor-made service.
                 Justification

The test of justification is twofold:
“ what did the service provider believe? (a
  subjective test); and
“ was that belief reasonably held? (an objective
  test).
               Good practice

“ Establishing a positive policy
“ Monitoring the effectiveness of the policy
“ Education and training of employees on a regular
  basis
“ Disability awareness
“ Addressing acts of discrimination
“ Customer complaints procedure
“ Regular review of reasonable adjustments made
 Fire regulations



If you are responsible for a place where people work,
meet or gather, you need to have an up-to-date fire risk
assessment and make sure that you comply from


DO NOT PANIC: We have produced a Short Checklist
and an Entry Level Guide to help you with your Fire Risk
Assessment.
If you need some additional information, don't worry, we
have produced a series of guides to suit different
business sectors.
These guides will give you more information about how to
carry out a Fire Risk Assessment, with specific advice for
your type of business.




           All of this information is
           free to download at:
           www.communities.gov.uk/fi
           re
           DO NOT IGNORE:
           You could be fined or face
           imprisonment
                Fire regulations

“ What are they?




“ Do they affect you?
Self assessment questionnaire




 http://www.fire.gov.uk/Workplace+safety/RROpag
 eForForm.htm
                Useful websites
                         Follett Stock
                   www.follettstock.co.uk
               Disability Rights Commission:
                       www.drc-gb.org
             National Register of Access Auditors
                      www.nrac.org.uk
             Centre for Accessible Environments
www.cae.org.uk/cae_publications/publications_order_form.htm
                                  l
                 Health and Safety Executive
                  www.hse.gov.uk/asbestos
   Department for Communities and Local Government
            www.firesafetyguides.communities.gov.
                     uk and www.fire.gov.uk
Follett Stock: the business
         solicitors
                 Gavin Poole
        gavin.poole@follettstock.co.uk
                01872 245998
                   Martin Pearse
       martin.pearse@follettstock.co.uk
                01872 245997
               Michael Boulton
      michael.boulton@follettstock.co.uk
                01872 245975
                Stuart Martin
        stuart.martin@folletstock.co.uk
                01872 245960
                Louis Mathers
       louis.mathers@follettstock.co.uk
                01872 245170
                   Ben May
          ben.may@follettstock.co.uk
                01872 247283

            www.follettstock.co.uk

				
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