Where steps are part of the critical circulation route (for example, there are four sets of steps between the entrance to ground level and the swimming pool), it is not effective to reconcile any less than all the steps in order to reach a facility; considerations in determining whether a platform stair lift, a seated chair lift, ramp or portable ramp could be used have been made on each set of steps independently. No reasonable and satisfactory solution through any construction work, alterations, adaption or temporary ramp(s) was able to be identified, including to any alternative routes to reach the spaces. The provision of a single chair lift was considered for the immediate long flight on arrival by reception, but this was ruled out by the short landing at the foot and the lack of turn space. Whilst it may be feasible to install it chairlift by removing the wall and relocating the door, the internal steps would still present a barrier. Considerations were also made to providing an external lift to the pool side in the open space by its external windows. The space is adequately wide for some lift types but the fire escape steps outside would be blocked. In addition, the intervention would involve substantial works and would only provide access to the pool itself, if feasible. The approach taken was therefore to consider what other considerations should or could be made to mitigate as far as possible barriers that will be experienced by JP. Sets of stairs/steps inside in general have a handrail provided or vertical grab rail (male changing room), mostly just to one side and these are fixed to the walls. Aside from having no alternative level access and the lack of hand rails, the steps do not meet current regulations for various reasons including: shorter flights are too narrow, riser heights are not consistent; riser heights on some stairs are too high, step nose rings are lacking visual contrast, handrails where provided are of incorrect design including being open at the ends (and clothing could hence catch them). The step issues indicated are not a particular barrier to JP since his level of mobility does not allow him to make use of the steps or handrails. The recommendations involve the use of a stair climber and pool hoist as auxiliary aids for use by JP (and other users of the club), to facilitate use and access under these exceptionally challenging circumstances. It also involves providing and using a shower chair. More economical and equally well performing auxiliary aids were not able to be identified.
Mr Ogg’s submissions in this regard, however, concentrated on Schedule 4 Paragraph 2(6), namely, that the duty to make reasonable adjustments only applies if Royal Herbert had received “a request on behalf of the tenant........ to take steps to avoid the disadvantage or provide an auxiliary aid.” He relies upon paragraph 21 of the Amended Particulars of Claim which specify that Mr Plummer had: “.... made a request for auxiliary aids in the provision of/installation of a stair lift, provision of handrails and the provision of a shower seat.....” and Mr Ogg noted that there was no reference therein to a stair climber, pool hoist or box step For the avoidance of doubt, Mr Ogg also reminded me of the provisions of Schedule 4 Paragraph 2(8) that it “is never reasonable...... to have to take steps which would involve the removal or alteration of a physical feature”. Given that Mr Proudlock (quite apart from others) indicated that a stair lift might only be feasible by removing the wall at the bottom of the main flight of stairs and relocating the door this would, of necessity, involved the removal or alterations of a physical feature. Royal Herbert could not therefore be said to have failed to have made a reasonable adjustment with regard to the stair lift. Ms Casserley accepted that under this designation the removal of a wall to create sufficient space for a stair lift would involve the alteration of a physical feature. Her submissions in this regard focused on whether there were auxiliary aids without which Mr Plummer would be placed at a substantial disadvantage in his enjoyment and use of the club and, if so, whether Royal Herbert had failed in its duty to take reasonable steps which would have a real prospect of success of avoiding that substantial disadvantage. Reasonable Adjustment There was a significant disagreement between Mr Ogg and Ms Casserley as to whether the stair climber could be taken into consideration at all for the purpose of these proceedings and, further, a lesser disagreement, as to whether the installation of handrails might amount to an alteration and/or removal of a physical feature. Otherwise, both Counsel had competing arguments in relation to the adjustments to be made and/or the auxiliary aids to be provided.