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VCAT Decisions Reminds Owners Corporations of Duties to Disabled Members and Occupants

VCAT Decisions Reminds Owners Corporations in Melbourne of Need to Act Reasonably when considering owners with disabilities.

Melbourne Owners Corporations were served a stark reminder of their duties to members with disabilities last month following another landmark decision from the Victorian Civil and Administrative Tribunal.

Two Owners Corporations responsible for maintaining an apartment complex in Travancore were ordered to pay a 76-year-old woman with physical disabilities $10,000 and install automated doors and ramps in the building after they both refused to make adjustments to the building’s common property to accommodate her disability.

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VCAT ruled that the changes the pensioner required were reasonable and that denying her those changes fell afoul of the Equal Opportunities Act.

The VCAT ruling, hailed as a significant win for Victorians with disabilities sets a crucial precedent for Owners Corporations across Melbourne – regardless of whether the buildings they maintain were originally built to modern access standards or not.

It also serves as an important reminder that Owners Corporations are accountable for far more than just the Owners Corporation Act (VIC) 2006.

The decision was originally handed down in February 2018 but was subject to a Supreme Court appeal.

The Supreme Court upheld VCAT’s decision before the matter returned to VCAT to determine who was responsible for paying for the modifications, with VCAT determining that the Owners Corporations should pay for the changes to the common property.

 

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The Case

The case centred around Anne Black, a 76-year-old pensioner with physical disabilities, who purchased her fourth-storey Travancore apartment on Mount Alexander Road in 2013.

Two years after purchasing the apartment, Ms Black was left permanently disabled following an unsuccessful operation on her foot. Her physical disability made it difficult for Ms Black to use the manual doors in the common areas of the building.

Ms Black sought orders in VCAT requiring the Owners Corporation to modify the building so she could access the main entrance, courtyard and car park independently.

Throughout the hearing, Ms Black gave evidence that she had needed to wait on the street asking strangers to open the main entrance door so she could access her property. On one occasion, a man asked her for money and ran off without opening the door.

Ms Black said she was “constantly frustrated at being denied personal access to my own building” and said she felt “imprisoned in her own home”.

The Disability Discrimination Legal Service, which was acting on Ms Black’s behalf, also submitted an expert report outlining the required modification works, which the Owners Corporation manager for the complex said would cost upwards of $42,000 to make.

A witness statement provided to VCAT suggested that the two Owners Corporations had $301,020 and $144,375 in their respective maintenance funds and tribunal member Bernadette Steele added that if a special levy was required to be raised the 54 lot owners within the complex would be asked for between $600 and $700.

The building itself complied with the building codes when it was constructed between 2006 and 2008, however, it would not meet new standards for disability access.

The Ruling

Ms Steele was satisfied that most of the modifications listed in the Disability Discrimination Legal Service’s report were reasonable.

She ordered the two Owners Corporations to widen several doorways, install four automated doors and install a kerb rail and step ramp in the car park.

She also ordered the two Owners Corporations to jointly pay Ms Black $10,000 in compensation, an amount she described as “conservative in the circumstances”.

“I accept that she suffered humiliation, stress, anxiety, frustration and embarrassment,” Ms Steele said in the ruling handed down last month.

“In my view, these experiences were especially painful in relation to not being able to access her home from the street without help.”

Ms Steele commented that the Owners Corporations required to make the changes were in a “strong financial position” to carry out the works.

The Reaction

The decision is viewed as a massive win for Victorians with disabilities and sets an important precedent for Owners Corporations across the state, according to the head of policy at the Victorian Equal Opportunity and Human Rights Commision, Simone Cusack.

“This means that owners corporations may need to make physical changes to their building’s common areas so that they are accessible to owners and tenants with disabilities,” Ms Cusack told domain.com.au

In a summary of the case written in July, Victorian law firm Maddocks wrote the following:

“For Victorian owners corporations, this decision confirms that careful consideration will need to be given to requests for alterations or adjustments by owners or occupiers with disabilities.

The question to be asked is not ‘should we allow the alteration at the owner or occupiers expense’?

Rather, it must be determined whether the adjustment requested is ‘reasonable’ and therefore can be made by the Owners Corporation itself. Matters such as cost and impact on other owners can, of course, be considered in assessing the reasonableness of an adjustment, but will not be determinative.”

Read the full summary HERE.

What Does Your Owners Corporation Need To Do?

The ruling means that your Owners Corporation needs to carefully consider any requests from members with disabilities and be sensitive to their requirements.

If you are a committee member, then these considerations should be made collectively as a committee first and then tabled at a Special or Annual General Meeting, if required.

The ruling reminds all Owners Corporations that their responsibilities do not start and end with the Owners Corporation Act (VIC) 2006 and must consider other laws, such as – in this instance at least – the Equal Opportunity Act.

As the Maddocks review above nicely surmises, the question your Owners Corporation must ask itself is not simply whether or not the beneficiary of the request pay for it, but rather, is the request reasonable?

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