Chapter 4

Access Policy Provisions and Legislation

A. Introduction

The formulation of access policies and the enactment of access legislation are the most effective means to ensure the right of persons with disabilities and elderly people to use the built environment.

The Agenda for Action for the Asian and Pacific Decade of Disabled Persons, 1993-2002, recommends the:

Enactment of legislation aimed at the elimination of architectural and logistical barriers to freedom of movement for citizens with disabilities, including incentives, in order to encourage:

1. Private and public sector involvement in improving accessibility of the built environment;
2. Facilitation of the use, by persons with disabilities, of land,air and water transport systems.

Effective access legislation should result in the creation of more accessible environments. Legislation should stipulate a continuous and accessible path of travel around, to and within buildings, transport and other facilities used by members of the public.

Many buildings and transport systems, considered to be accessible, provide isolated accessible facilities, but this is not enough. This facilitates much greater ease of access for elderly persons and persons with disabilities.

Access legislation needs to cover persons with:

1. Physical disabilities, ambulant or not;
2. Sensory disabilities, including impaired vision and impaired hearing; and
3. Intellectual, developmental and psychological disabilities.

All guidelines, standards and legislation should be developed and strengthened through consultation, monitoring and reviews on a regular basis and a time-frame for such reviews should be stipulated in the guidelines, standards and access legislation itself. Continuous revision of the relevant guidelines, codes and legislation is needed if a barrier-free environment is to be maintained properly.

Revision procedures should include consultations with Government, owners of buildings, owners of transport, persons with disabilities and elderly people. The establishment of Access Committees (see Annex V) to liaise between Government and community members is an effective way of encouraging the implementation of access legislation.

Concerning implementation of access legislation, consideration needs to be given to time-frames for achieving accessible environments and the relationship between access legislation and the wide and complex range of other built environment legislation. Efforts to resolve any conflicts that may arise between access legislation and policy provisions and safety regulations may be undertaken, aimed at avoiding misconception about access legislation as being opposed to safety regulations.

B. Definitions

The following terms are commonly used in relation to legislation and policies concerning the promotion of barrier-free environments:

Access legislation: An enactment passed either by national, provincial or State legislatures, or by any body empowered by the respectie constitution to legislate, in order to provide people with disabilities and elderly persons with access to the built environment; it may cover the following areas: buildings, public facilities, roads and transport systems.

Anti-discrimination legislation: An enactment passed either by national, provincial or the state legislature, or by any body empowered by the respective constitution to legislate in order to provide people with disabilities and elderly persons with a legal right against discrimination on the grounds of disability or old age.

Access policy provision: An administrative order issued by the Government (national, provincial or State, and local), which stipulates concessions (e.g., tax deductions or travel concessions) or incentives (e.g., preferential treatment in the allotment of construction sites) to promote the accessibility of the built environment for people with disabilities and elderly persons.

Access standards: Specifications for means of access to buildings, public facilities, roads and transport systems.

Amendment: Modification of a law, by-laws, as well as rules and regulations, in the form of additions, alterations or repeals of provisions of such law, by-laws, as well as rules and regulations, e.g., building codes and building by-laws.

Bill: A draft law which is being considered by the legislature for possible enactment.

Building code: A document which specifies the basic features of and requirements for a completed building. It is approved by the supreme legislative authority of a country or territory and serves as the basis for the development of building standards and by-laws throughout the country or territory. A building code may be amended.

Building by-laws: Rules and regulations framed and approved by local Government, which specify the procedures for application for permission to build and certification of completion of building and readiness for occupancy; the rules and regulations also include specifications which are based on those contained in the building code and standards of the country or territory.

Building standards: Specifications (e.g., dimensions of approaches to buildings) for different features (e.g., fire safety measures or light controls) and parts (e.g., corridors) of buildings as contained in a building code.

Certificate of Fitness or Certificate of Occupancy: Permission for a building to be occupied.

Decree: An administrative or quasi-judicial order and/or a law issued either by parliament, ministries at different levels, local government or Head of State. Ministerial decrees (national or provincial), local government decrees and parliamentary decrees are policies and are, therefore, not enforceable by law. Presidential decrees are, in some political systems, legally enforceable.

Design guidelines: A policy document detailing accessibility features and building design criteria.

Enabling provisions: Rules and regulations formulated to implement and enforce an enactment.

Enactment: A law passed by national, provincial or state legislatures or a body empowered by the respective constitution to legislate.

Gazette: Notification of the contents of the law passed by the competent body and the date of its coming into force.

Government Order: This is issued by a local Government or ministry (national or provincial) for implementation of a policy or for internal administration (e.g., allocation of functions to diverse ministries and to sections within the issuing autority). A Government Order may also be referred to as an Executive Order.

Ordinance: A law promulgated by the Head of State, on the advice of the Cabinet, for temporary application (e.g., on an urgent basis when parliament is not in session) and subsequent adoption by the legislature for permanent application.

Rules and regulations: Mandatory rules and regulations are formulated to implement and enforce a law. Administrative rules and regulations are formulated to implement a policy.

Statute: A law which has come into force.

C. Approaches to the promotion of barrier-free environments

1. Initiative approach

This approach focuses on increasing the sensitivity and responsiveness of various sectors of society to the access needs of persons with disabilities and elderly persons, so that these sectors may play an active role in access promotion. The various sectors include individuals, government officials, politicians, trade unions, private sectors and non-governmental organizations.

2.Social responsibility approach

Although social responsibility arises as part of public concern for commitment to the promotion of barrier-free environments, it is not the same as public awareness. This is because awareness of the need to create a barrier-free environment does not necessarily incorporate a moral obligation to do so. Moral obligation can be brought about by educating society about the difficulties faced by persons with disabilities and elderly people in an environment full of barriers. This approach emphasizes the fulfilment of the responsibility of various sectors of society to contribute to the elimination of barriers encountered by people with disabilities and elderly persons. Action taken in this regard is directed at publicizing good efforts through positive publicity and discouraging bad examples through negative publicity.

3.Good practice approach

This approach is closely related to the social responsibility approach, and shows that creating a barrier-free environment could be incorporated into everyday thinking in society. It is directed a generating positive examples of access promotion as a means of encouraging similar efforts on a larger scale.

4.Mandatory approach

This approach is based on pressure from legal instruments or administrative decrees. In the case of non-compliance, penalties such as fines or demolition of the building may be imposed.

5.Incentive-disincentive approach

In this approach the promotion of accessibility is encouraged by a combination of incentives, such as the awarding of government building contracts or soft loans for purchases, and disincentives, such as the withholding of permits or refusal to grant preferential rates for the purchase of construction sites.

6. Economic approach

This approach focuses on increasing the involvement of various sectors of society in the promotion of an accessible built environment for persons with disabilities and elderly people by publicizing the cost effectiveness and other consequential economic benefits of accessible built environments.

7. Combination of the above approaches in an overall strategy

An overall strategy for the promotion of barrier-free environments would include a combination of the above approaches. At different stages, a particular approach may be more useful, depending on the key person or organization whose participation is to be encouraged and the desired outcome obtained.

D. Development of access policy provisions and legislation

1. Objectives

The objectives of access policy provisions and legislation may include the following:

1. The promotion of barrier-free built environments for all citizens; and
2. The integration into the planning and design of built environments of the access requirements of people with disabilities, elderly persons, children and expectant and nursing women.

The involvement of grassroots organizations, concerned individual citizens, government agencies and the mass media is a prerequisite for the development of access policy provisions and legislation.

2. The main stages in the development of access policy provisions and legislation

The process for the development of access policy provisions and legislation may be envisaged in terms of five main stages:

1. Pre-formulation: The mobilization of the support of grassroots organizations, parliamentarians, government officials, political parties, and establishment of linkages among grassroots organizations, professional associations and government agencies and the providers of community services.
2. Formulation: The drafting of access policy provisions and/or legislation; ascertaining public opinion about the drafts; the revision and finalization of drafts; and promotion of public support and enactment.
3. Implementation: The application of access policy provisions and/or legislation to create more accessible built environments.
4. Enforcement: The award of incentives to encourage observance of access policy provisions and/or legislation; actions to discourage, through disincentives, or punish, through penalties, in the event of breaches or non-compliance;
5. Monitoring: The review of the effectiveness of access policy provisions and/or legislation; and the proposal of amendment(s).

The key steps of the above-mentioned stages are shown below:

Note:

1. Steps 1, 2 and 3 would be the pre-formulation stages within the process of creating the policy provisions and access legislation. The mobilization of grassroots support (step 1) and its results will be taken into account in the formulation stage (step 4). Further, the mobilization of grassroots support will necessarily lead into bringing about support of the key persons or organizations (step 2). Vice versa, garnering the support of key persons or organizations would necessarily lead to the mobilization of grassroots support (step 1).
2. Steps 4,5 and 6 are the formulation stages and involve the creation of policy provisions and access legislation. Here, the feedback obtained through public opinion (step 5) will have to be taken into account in the actual stage of formulation (step 4). Feedback obtained in the formulation stage (step 4) must be taken into account in the survey stage (step 3). It must be noted that, at times, feedback from public opinion (step 5) does not only go to formulation stage (step 4), but also to the survey stage (step 3). This would depend on the gravity and scope of public opinion (step 5).
3. Step 7 is the implementation stage for policy provisions and access legislation. Feedback obtained through the implementation of policy provisions and access legislation will be taken into account at both the formulation stage (step 4) and survey stage (step 3).
4. Step 8 is the enforcement stage of policy provisions and access legislation. This enforcement stage (step 8) will be monitored through feedback generated from the consumers and the public. The monitoring will be done on a regular basis and will be taken into account at both the formulation stage (step 4) and survey stage (step 3). Monitoring will be done through effective review of access policy provisions and access legislation.

3. Pre-formulation

(a) Mobilization of grassroots support

Self-help organizations of people with disabilities and elderly persons have a critical role to play throughout in the process for the development of access policy provisions and/or legislation. In order to fulfil this responsibility, they should acquire basic technical knowledge of access issues and the skills for dialogue and cooperative action with the concerned sectors of Government and society.

A self-help organization may consider developing an access team drawn from its members and concerned professionals. Such a team may include prominent and skilled persons with disabilities who may play an important role in mobilizing grassroots support. The teams tasks would be to:

1. Develop training courses on access issues and the legal aspects of those issues for their constituents;
2. Serve as a resource for government initiatives to promote accessibility;
3. Advocate in diverse forums the need for access standards and their adoption by a statutory body;
4. Solicit the support of legislators for the formulation of access policy provisions and/or legislation.

NGOs which provide services should serve as a resource for and participate in information exchange.

(b) Role of key persons and organizations in the development of access policy provisions and/or legislation

The relevant government agencies should develop, in consultation with knowledgeable representatives of self-help organizations and professional associations, training courses on access issues for concerned government officials.

National bureaux or institutes of standards should, in consultation with concerned organizations, develop policy documents pertaining to access standards and design guidelines for barrier-free built environments.

Urban planners should include the access requirements of people with disabilities, elderly persons, children and expectant and nursing women in the preparation of plans for towns and cities.

Government officials responsible for rural planning and development should incorporate the access requirements of people with disabilities, elderly persons, children and expectant and nursing women into all areas and stages of their substantive and administrative responsibilities.

Government officials and legislators play a vital role throughout the process of developing access policy provisions and legislation at national, provincial or regional and municipal levels. The following actions may be taken by government officials to formulate access policy and/or legislation:

1. Identify, in close consultation with NGOs, including self-help organizations of people with disabilities and elderly persons, the access needs of diverse social groups.
2. Mobilize the concerned sectors of society for involvement in a committee to be composed of representatives of diverse disability groups, elderly persons, children and women, administrators, professionals (e.g., architects and urban planners) and service providers (e.g., transport). In the case of provincial and municipal governments, representatives of local authorities should also be committee members.
3. Request the committee to submit recommendations on access policy provisions and/or legislation. The tasks of the committee would be as follows:
   1. To confirm the purpose, task and scope of access policy provisions and access legislation;
   2. To clarify the access needs of persons with disabilities and elderly persons;
   3. To develop a list of the points to be checked through a community survey;
   4. To conduct a survey of access needs and consult persons with disabilities and elderly people on the validity of survey findings;
   5. To review the outcome of the survey and decide on the content of the proposed access policy and law;
   6. To prepare a draft report containing the survey findings and draft policies and/or legislation for submission to the concerned government official for approval and further action.
   7. To formulate a draft policy or law.
   8. To coordinate the review of the draft policy and/or law by concerned sectors of society.
   9. To finalize the draft policy and/or law.
   10. To submit the finalized draft law to the legislature for approval and adoption.
   11. To attend and defend the draft law in the legislature.
   12. To conduct a campaign to promote support for implementation using the following means: brochures or leaflets, video cassettes, seminars and training courses, as well as the mass media. The campaign would be directed at the general public, professionals, persons with disabilities, elderly people and other user groups, as well as service providers.
   13. To enforce the law through administrativ procedures, which should include the issuance of building permits.
   14. To monitor continuously and review the law in consultation with all user groups.

4. Role of government officials and legislators

(a) Survey

Prior to the formulation of policy and/or legislation, a survey should be conducted. The purpose of the survey should be to identify obstacles in the built environment encountered by user groups. There are at least two approaches to conducting a survey: either an area within an approximate radius of 2 - 3 km from a public facility (e.g., a railway station) could be chosen for the survey, or the survey could be conducted in and around selected types of public facilities, such as community centres, government offices and shops.

The following check-list may be used as a survey tool to ascertain the extent of accessibility of the built environment.

Checklist for survey of accessibility of the built environment (*10)

The survey findings should be discussed in appropriate forums. For this task, a barrier-free environment survey committee could be formed. The committee could include the following: architects, local self-help organizations of persons with disabilities and elderly persons, relevant local authority officials and owners of buildings surveyed.

For the committee to be optimally functional, the number of members could be between 15 to 25. Subsequent to its deliberations on the survey findings, the committee should develop the necessary guidelines, codes and standards for the creation of a barrier-free built environment.

The guidelines, codes and standards would need to be periodically reviewed for the following reasons:

1. To enhance their comprehensiveness;
2. To address new needs and requirements that might emerge from time to time; and
3. To facilitate revision of their implementation and effectiveness.

5. Formulation

(a) Legal structure

The following are examples of the legal structures of three political systems in the ESCAP region, which could be adapted to suit the needs of individual ESCAP members and associate members:

The three examples above underline the legislative hierarchy within which a legal structure operates. The hierarchy of each example determines the division of subjects (e.g., transport, roads or buildings) among legislative bodies at different levels. As transport is a national subject, parliament or the president would be competent to legislate on matters concerning transport. Similarly, as buildings are a local subject, the provincial or state legislature or local Government, has the competence to legislate on it.

(b) Formulation of access policy provisions and legislation

With respect to access policy provisions and legislation, two options are possible:

1. Formulation of a separate access policy and/or legislation, as distinct from relevant policies and legislation; or
2. Integration of access standards and design guidelines into relevant policies and legislation like building by-laws.

The advantage of a separate access policy and/or legislation is that it could address in a comprehensive manner the access needs of all groups in society. However, the process for its formulation and implementation may be more lengthy and difficult than if access concerns were to be integrated into the relevant policies and legislation.

An integrated approach has the merit of more expeditious formulation, effective implementation, enforcement and monitoring through mechanisms that already exist for related policies and legislation. In the integrated approach, it may, however, be difficult to cover the special access needs of a particular group.

A consultative mechanism, e.g., an access committee, may be formed. Concerning policy and legislation matters, the committee would assist the Government in identifying access needs and in formulating policy provisions and legislation. The committee may be composed of representatives of diverse government agencies, NGOs and individuals in their professional capacity.

(c) Access policy provisions

Government agencies should consult with self-help organizations in the formulation and finalization of access policy provisions. Preparations should include the matching of access needs with related policy provisions and legislation.

Access standards and design guidelines are typical examples of access policy provisions. National access policy in its draft form should be circulated to all self-help organizations for their comments. Following consideration of the views received, the draft policy should be revised and adopted by the concerned ministry. An access policy should be presented to parliament for adoption in order to strengthen its morally binding force for implementation purposes.

(d) Access legislation

There may be policy provisions, e.g., access standards and design guidelines, which could be considered for enactmen. Methods which are useful for creating a conducive milieu for enactment include:

1. Development of close relations with television and radio correspondents and print media journalists;
2. Lobbying with legislators, political parties, as well as community and religious leaders;
3. Submission of a public petition for enactment on meeting access needs to the speakers of parliament or state legislative assemblies;
4. Tabling of reports on a regular basis to parliament or state legislative assemblies on progress in the promotion of access to built environments by concerned ministers; and
5. Submission of memoranda to political, legislative and administrative forums at all levels, including their chief executives, e.g., prime minister, chief ministers, governors, mayors and village chiefs.

An enactment could be in the form of a government-sponsored bill or one sponsored by members of parliament or state legislative assemblies. Depending on the political system, such a bill would be discussed in either two or three stages. It is possible that a bill introduced by individual members of parliament or state legislative assemblies is not passed. Government-sponsored bills are usually passed. After a bill is passed, it is sent to the Head of State for assent. The bill becomes an Act only after its notification in the official Gazette of the date on which it comes into force.

In some cases, presidential or ministerial decrees could be passed to legislate on access issues. Similarly, decrees in the form of law could also be issued by local Governments. Thus, it is possible to have access legislation at national, provincial or State and local levels.

Consideration may be given to the enactment of access legislation in addition to but not in conflict with related legislation pertaining to the built environment. For example, if, in building by-laws, it is stipulated that ramp gradients should be 1 in 10, while in access legislation, it could be 1 in 20, this provision in access legislation should prevail over the corresponding provision of building by-laws.

To facilitate the application of access legislation there may be provision for exemption from implementation. However, such exemption should be granted only in exceptional circumstances, when it is difficult, either in the short term or in the long term, to introduce adaptation in accordance with the law. For example, in the case of a religious, cultural or historically significant building, if it would not be possible to adapt such a building to meet the reuirements of the access legislation, without offending religious and cultural sentiments and without marring the historical significance of such a building, the granting of exemption may be considered.

(e) Scope and coverage of access policy provisions and legislation

Access policy provisions and legislation should address the access needs of all disability groups, elderly persons, children and expectant and nursing women. Those policy provisions and legislation should apply to:

1. Buildings (all types, new and old, including government- and private sector-owned);
   Access policy and legislation should apply to new buildings from the planning to certification of fitness stage. In the case of old buildings, a reasonable moratorium period (e.g., two to four years), in accordance with local conditions, may be provided in access policy and legislation. However, no extension of such a moratorium should be stipulated.
2. Public facilities;
   The term "public facilities" covers all places and amenities which members of the public have a right to use.
3. Roads and inland waterways;
   Access policy and legislation may stipulate the statutory responsibility of concerned authorities to cover manholes, drainage and sewerage systems, as well as to regularly maintain roads, footpaths, walkways, pedestrian crossings, road dividers and overhead bridges.
   Access policy and legislation should also stipulate a statutory obligation upon the concerned authorities to provide for access features on jetties and piers so that all social groups may use inland waterways.
4. Transport systems.
   Policy and legislation should provide for access to all means of land, water and air transport systems. Vehicles which are in use should also be covered by such policy and legislation. A moratorium (one to two years) could be stipulated for introducing access features into those vehicles. For example, policy and legislation may stipulate either a phasing out of high-bodied buses within the moratorium or changing those buses into low-bodied ones, with provision for platforms at bus stops.

Each of the above subjects falls within the scope of different government agencies. It is possible that separate policy provisions and legislation may be enacted for each one.

Public facilities: examples

6. Implementation

Access policy and legislation may, in the first instance, be implemented by existing agencies or authorities responsible for the implementation of building regulations, maintenance of public facilities, roads and inland waterways, and transport systems. Municipal officers and officials of transport corporations are examples of existing implementation mechanisms. It may, however, be useful to provide for supplementary implementation mechanisms, e.g., access committees under concerned government agencies, information services, as well as access officers, patrols and perhaps an ombudsman.

The incentive-disincentive approach may be helpful in the implementation of access policy. Many incentive schemes may be considered, e.g., government subsidies, soft loans, tax deductions, preferential treatment in the allotment of new construction sites and the award of government contracts in the event of satisfactory compliance.

Buildings, public facilities, roads and inland waterways and transport systems are regulated through a variety of procedures. One example of the procedure concerning building construction activity is that building plans and an application for permission to build are required to be submitted prior to any construction activity. The competent authority examines the building plans with reference to conditions set out in the building by-laws for the construction of that type of building. Permission to build is granted if the building plans are in accordance with those conditions. Upon completion of the building, but before it is occupied, a certificate of fitness is required to be obtained from the competent authority.

7. Enforcement

The methods of and mechanisms for enforcement of access policy and legislation may differ. This is because access policy does not have legal sanction.

(a) Access policy

The enforcement of access policy is distinct from its implementation. While implementation is the procedure for translating policy into action, enforcement is the procedure for ensuring its compliance through punitive measures. Punitive measures range from negative publicity of non-compliance to the imposition of fines. Enforcement authorities are the same as those responsible for implementation.

(b) Access legislation

An effective provision for enforcement should be included in access legislation. Such a provision may stipulate the right of all users of the built environment to take legal recourse in the event that there is a breach in the compliance of the legislation. Thus, consideration may be given to the inclusion of a provision for users to claim damages should there be a lapse or omission in the discharge of a statutory responsibility. In the event of non-compliance, the following punitive measures may be considered for inclusion in access legislation to deal with violations:

1. Disqualifying a builder from applying for a building permit, or a vehicle manufacturer from applying for an industrial licence;
2. Disqualifying a builder or vehicle manufacturer from obtaining government subsidies or loans;
3. Disqualifying a builder from participating in any government contract or tender;
4. Imposition of fines; and/or
5. Passing an order of demolition.

Courts of law may be an effective enforcement mechanism. The setting up of special courts for the enforcement of access legislation could also be included in access legislation. Consumer protection forums may be used for the enforcement of access legislation.

8. Monitoring and reviewing

To enhance and sustain the positive outcomes of implementation, regular monitoring of the results is necessary. Provision for periodic review of access policy and/or legislation may be included. Users and consumer associations should be involved in monitoring and reviewing. Paralegal education and training should be provided for those involved. Mass media campaigns should be used to support implementation.

9.Strengthening access policy provisions and legislation

Continuous improvements in the availability of technology and the changing needs of users of the built environment mean that access policies and legislation require continuous updating. This can be done with amendments, taking feedback generated from monitoring and reviewing into consideration. For access policies, there is no fixed procedure for amendment. It is, therefore, relatively easy to amend these. The constitutional procedure for amending an Act has to be observed for access legislation.

_______________

¹⁰Source: Konkkola, Maija (1980), Barriers in the Built Environment and their Elimination, Paper presented to ICTA Seminar on Accessibility, Winnipeg, Canada, 1980.

Go back to the Contents

ECONOMIC AND SOCIAL COMMISSION FOR ASIA AND THE PACIFIC
Promotion of Non-Handicapping Physical Environments for Disabled Persons: Guidelines
- Chapter 4 -

UNITED NATIONS
New York, 1995