Thomas-Ashley v Drum Housing Association Ltd [2010] EWCA Civ 265

Case No B5/2009/1681[2010] EWCA Civ 265IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
H.H.J. MURPHY
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17 th March 2010
Before
THE CHANCELLOR OF THE HIGH COURTLORD JUSTICE THOMASSIR SCOTT BAKER
Between
DEE THOMAS-ASHLEYAppellantDRUM HOUSING ASSOCIATION LIMITEDRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Joshua DUBIN (instructed by Swain & Co Solicitors) for AppellantMr Philip GLEN (instructed by Coffin Mew Llp) for RespondentHearing Hearing date: 16 FEBRUARY 2010
JudgmentSir Scott Baker:Introduction
[1]Alfie is a Jack Russell/Border Collie cross. He lives with the appellant in her one bedroom flat at 1, Itchen Court, Crombie Close, Lovedean in Hampshire. Unfortunately the appellant’s tenancy agreement does not allow dogs to be kept on the premises. The respondents’, Drum Housing Association Ltd. her landlords, told her Alfie would have to leave. When he did not they took proceedings for possession against her in the Southampton County Court. Judge Murphy held she had no answer to the claim; the appellant had an assured short-hold tenancy and the appropriate notice had been served under section 21 of the Housing Act 1988. The appellant appeals on the ground that she has a disability and the presence of Alfie is critical to her health; she cannot enjoy the premises without him and the respondents are in breach of duty under section 24A of the Disability Discrimination Act 1995 (“The 1995 Act”) in maintaining the “no dogs” provision in her tenancy agreement. Accordingly, it is submitted the possession order should not have been made and should be set aside.[2]The appellant suffers from a condition called Bipolar Mood Disorder which is a complex disorder characterised by cyclical and episodic disturbances in mood which, at their extreme, fulfil criteria for manic as well as depressive episodes.[3]The appellant has been a tenant of 1, Itchen Court since it June 2006. It is in a block of flats which includes both owner occupiers and privately renting tenants. The head lessor was Heronscope Ltd. but is now Southern Land Securities Ltd. and the respondents hold a 99 year lease from 29 September 1998. This lease contains a provision that every leaseholder (and there are other flats on the site apart from that held by the respondents) should comply with the terms in the fourth and fifth schedules. Paragraph 1 of the fifth schedule provides:
“l. Not to do or permit to be done on the demised premises or any part thereof or on any part of the site any act or thing which may be or tend to become a nuisance or disturbance to the occupiers or owners of the remainder of the site or to the neighbourhood and not to allow any pets or animals to be kept in the flat without the previous written consent of the managing agent”
. The respondents’ lease to the appellant provides:
“3.8.1 “Animals may not be kept at the premises or in any of the common parts.”
The lease also contains a number of grounds on which the respondents may obtain possession. They include (ground 14):
“You or anyone living in the premises have been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality…”
[4]On 4 February 2008 the head lessor’s managing agents, Hamilton King, wrote to the respondents complaining that the appellant was keeping a dog in breach of the agreement. Following service by the respondents of notice under section 21 of the Housing Act 1988 seeking possession, the appellant’s solicitors asserted that Alfie was an important part of her rehabilitation and invited them to withdraw the notice, but the respondents did not do so and the judge eventually made the possession order which is the subject of this appeal.[5]Ordinarily a tenant of an assured short-hold tenancy has no answer to a claim for possession if the requisite period has passed and the relevant notice has been served. Where the statutory provisions are properly followed a tenant will have no defence save on procedural or public law grounds. In this case, however, numerous points were taken on behalf of the appellant, none of which succeeded before the judge. The point that is taken on appeal is, in summary, that the use of the section 21 procedure is an attempt to enforce provisions in the tenancy agreement that are unlawfully discriminatory under the provisions of the 1995 Act and that the court should not sanction the landlord’s enforcement of such provisions.

Background

[6]The appellant and her former husband used to live with her four children in a family home in Horndean. Her husband left leaving the appellant in the house with the children. There were divorce proceedings during which the appellant became mentally unwell. In May 2006 she was admitted to hospital under the Mental Health Act 1983 – diagnosed as Bipolar – which is the condition I have already described. When she was discharged from hospital her husband had returned to the family home and was living there with the children. The appellant was therefore homeless – but not intentionally so – and in priority need. The East Hampshire District Council accepted it owed her a full housing duty.[7]On 26 May 2006 she was offered and accepted accommodation at 1, Itchen Court. She signed the tenancy agreement on 15 June 2006 and moved in in late June/early July 2006. The start date of the tenancy was 19 June 2006. The appellant’s youngest son regularly stays at 1, Itchen Court.[8]In October 2007 the appellant’s former husband said that Alfie, who belonged to the appellant’s daughter Rachel, could no longer stay with Rachel in the former matrimonial home. The options at that point appear to have been that either Alfie joined the appellant in which case Rachel would be able to go on seeing him, or that he would have to go to the RSPCA. In the event, as the judge found, it was no chore for the appellant to have him and he is an important adjunct to her life.[9]There was expert evidence that the companionship of the dog and the obligation to care for and exercise him promotes the mental health and well-being of the appellant to a marked degree. The evidence that the dog was beneficial to the appellant’s mental health was summed up in the following answer from the witness Dr. Schenk:
“Based on review of the documentation collateral from Allana Boncey and interview with Mrs Thomas Ashley I can conclude that Alfie is not only beneficial for her mental health but essential in her rehabilitation. I fully agree with David Preston’s comments in his letter of 5 June 2008 in which he states “Since having the dog Mrs Thomas-Ashley has acquired a purpose in life. At present she is uncertain of her family status and her bipolar disorder continues. However the dog gives her a point of focus and makes demands on her that she is happy to respond to. Feelings of guilt and ideas of futility have been replaced with the decision to keep the dog and fight for its existence. I could only imagine the effect that taking the dog away from Mrs Thomas-Ashley would have. I believe that it would add to her feelings of dejection, guilt, loss and bereavement that she is already experiencing considering the loss of family relationship and the loss of what she considers her home. These sentiments are echoed in Dr Janet Sinclair’s clinic letter of 20 August 2008 in which she states, “as well as the obvious emotional attachment she has to the dog she describes clear benefits to her mental health from exercising and socialising linked to the dog. I also fully agree with the following statements stated in the same letter: “She has bipolar mood disorder and is on medication that is probably contributing to a mild increase in weight. Exercise is recognised as important in controlling the weight of those who may be at risk of gaining weight and its subsequent health problems on medication. Exercise is recognised as being beneficial to depressed patients particularly exercise that lifts the mood such as that when out in the countryside”
. It is predictable that the benefits previously gained as regards mental health, socialisation and physical health would be jeopardised if Mrs Thomas-Ashley were forced to give up her dog. The emotional response to such a loss in an already vulnerable individual such as Mrs Thomas-Ashley could well precipitate disengagement from the mental health scheme and a relapse of a severe depressive or manic episode. Compliance on medication could also be threatened if her weight gain due to Lithium is not moderated by her present level of exercise.”” Allana Boncey there referred to is the appellant’s social worker, employed by the Parkway Centre Adult Mental Health Team, who has known the appellant for some four years.[10]When the head lessor’s agents wrote to the respondent on 4 February 2008 asking for the dog to be removed they said:
“We have been advised a resident is keeping a dog at the property and we write to advise you that under the terms of the lease: “Not to do or permit to be done on the Demised Premises or any part thereof or on any part of the Site any act or thing which may be or tend to or become a nuisance or disturbance to the occupiers or owners of the remainder of the Site or to the neighbourhood and not to allow any pets or animals to be kept in the flat without the previous written consent of the Managing Agents.”
To keep an animal at the property is in breach and we would advise that the dog is removed from the premises and re-housed within 7 days of receipt of this letter to prevent us enforcing the terms of the lease and referring the matter to solicitors. We also inform you that the current tenant is causing a constant disturbance to the neighbouring flats at her property. We have been made aware that along with the noise created by the dog barking, which occurs throughout the day and night, that the tenant herself causes disturbance to other residents due to unreasonable levels of noise.”[11]It was not until October 2007 Alfie joined the appellant at the premises. She had thus lived there alone for a period of some 15 months. Alfie lived with the appellant for 4 months or so before the letter of 4 February 2008 and has remained there ever since. Proceedings were commenced in the Southampton County Court on 14August 2008.[12]The judge made the following material findings of fact.• The appellant paid no particular attention to the nature of the agreement and its particular terms.• She asked permission to have a dog, was refused, and went on to take a risk by having it without permission.• On 13 February 2008 the respondent’s representative Sarah Clawson pointed out that if East Hampshire District Council re-housed the appellant the re-housing of Alfie would be only temporary. Sarah Clawson mistakenly understood the appellant to agree, as a result of this, that she would re-house Alfie.• Alfie does bark.• Alfie is not the type of dog for which the head lessors will give consent. If Alfie stays forfeiture proceedings, against which there is no defence, are inevitable.

The Legislation

[13]Section 24A of the 1995 Act is headed “Let premises: discrimination in failing to comply with duty.” It reads:
“(1) It is unlawful for a controller of let premises to discriminate against a disabled person – (a) who is a person to whom the premises are let; or (b) …… (2) For the purposes of subsection (1), a controller of let premises discriminates against a disabled person if – (a) he fails to comply with the duty under section 24C or 24D imposed on him by reference to the disabled person and; (b) he cannot show that failure to comply with the duty is justified (see section 24K).”
The rest of the section is not relevant for present purposes. It is not disputed that the respondent is a controller of premises and the appellant is a disabled person. Section 24B contains a number of exceptions to section 24A, none of which is relevant to this case. (a) who is a person to whom the premises are let; or (b) …… (2) For the purposes of subsection (1), a controller of let premises discriminates against a disabled person if – (a) he fails to comply with the duty under section 24C or 24D imposed on him by reference to the disabled person and; (b) he cannot show that failure to comply with the duty is justified (see section 24K).”[14]This case is not concerned with the duty in section 24C. The relevant duty is to be found in section 24D, which is headed:
“Duty for purposes of section 24A(2) to change practices, terms etc. It provides: (1) Subsection (3) applies where – (a) a controller of let premises has a practice, policy or procedure which has the effect of making it impossible, or unreasonably difficult, for a relevant disabled person – (i) to enjoy the premises, or (ii) to make use of any benefit, or facility, which by reason of the letting is one of which he is entitled to make use, or (b) a term of the letting has that effect, and (in either case) the conditions specified in subsection (2) are satisfied. (a) a controller of let premises has a practice, policy or procedure which has the effect of making it impossible, or unreasonably difficult, for a relevant disabled person – (i) to enjoy the premises, or (ii) to make use of any benefit, or facility, which by reason of the letting is one of which he is entitled to make use, or (b) a term of the letting has that effect, (2) Those conditions are – (a) that the practice, policy, procedure or term would not have that effect if the relevant disabled person did not have a disability; (b) that the controller receives a request made by or on behalf of a person to whom the premises are let; (c) that it is reasonable to regard the request as a request of the controller to take steps in order to change the practice, policy, procedure or term so as to stop it having that effect. (3) It is the duty of the controller to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change the practice, policy, procedure or term so as to stop it having that effect (but see section 24E(1)).”
Section 24E provides:
“(1) For the purposes of sections 24C and 24D, it is never reasonable for a controller of let premises to have to take steps consisting of, or including, the removal or alteration of a physical feature. (2) Section 24C and 24D impose duties only for the purpose of determining whether a person has, for the purposes of section 24A, discriminated against another, and accordingly a breach of any such duty is not actionable as such. (3) In sections 24C and 24D “relevant disabled person”, in relation to let premises, means a particular disabled person – (a) who is a person to whom the premises are let; or (b) who, although not a person to whom the premises are let, is lawfully under the letting occupier of the premises.” (a) who is a person to whom the premises are let; or (b) who, although not a person to whom the premises are let, is lawfully under the letting occupier of the premises.”
Subsection (4) is not relevant for present purposes.[15]Showing justification for failure to comply with the duty referred to in section 24A(2)(b) is explained in section 24K which provides:
“(1) For the purposes of sections 24A(2) and 24G(2), a person’s failure to comply with a duty is justified only if – “(a) in his opinion, a condition mentioned in sub-section (2) is satisfied; and (b) it is reasonable, in all the circumstances of the case, for him to hold that opinion. (2) The conditions are – (a) that is necessary to refrain from complying with the duty in order not to endanger the health or safety of any person (which may include that of the disabled person concerned); (b) that the disabled person concerned is incapable of entering into an enforceable agreement, or of giving informed consent, and for that reason the failure is reasonable.” “(a) in his opinion, a condition mentioned in sub-section (2) is satisfied; and (b) it is reasonable, in all the circumstances of the case, for him to hold that opinion. (a) that is necessary to refrain from complying with the duty in order not to endanger the health or safety of any person (which may include that of the disabled person concerned); (b) that the disabled person concerned is incapable of entering into an enforceable agreement, or of giving informed consent, and for that reason the failure is reasonable.”
[16]The judge found that either expressly or impliedly the appellant had made a request. He went on at paragraph 81 to pose the question:
“Is section 24D a statutory provision assisting the appellant’s case? “ He answered this by saying “It must depend primarily upon whether the prohibition of animals term has the effect of making it impossible or unreasonably difficult for the appellant to enjoy the premises and secondly that the prohibition of animals term would not have the effect of making it impossible or unreasonably difficult for her to enjoy the premises if she was not disabled.”
[17]The judge said that the evidence showed that while disabled she lived at the premises without the dog. Accordingly he could not find it was impossible or unreasonably difficult for her to enjoy the premises without the dog atsome times. He went on to find, however, that it was perfectly feasible for the absence of the dog to be of no effect in one period but to be relevant in another. He went on to find however, that what was critical was that if the appellant did not have her disability and was not allowed to keep Alfie in the premises she would still find it impossible or unreasonably difficult to enjoy the premises, because in reality it was companionship of the dog that she enjoyed rather than enjoyment of the premises. The appellant’s case therefore failed on that ground. The judge however saw a further insurmountable problem in that the head lessor would not countenance the presence of Alfie on the premises.[18]The judge then focused on section 49A of the 1995 Act which provides that it is the duty of every public authority in carrying out its functions to have due regard to the need to take account of disabled persons’ disabilities even where that involves treating disabled persons more favourably than others. He made a number of points before concluding that section 49A did not assist the appellant in providing a defence to the possession proceedings. That is a conclusion which has not been challenged on this appeal and is one with which I agree.[19]Mr Philip Glen, for the respondents, makes the following submissions.(1) The duty spelt out by sections 24A and D only arises if it is triggered by a relevant request. He refers to this as the “trigger” issue.(2) The duty does not arise if the term would make occupation of the premises unreasonably difficult or impossible even if the person concerned was not disabled. He refers to this as the “comparator” issue.(3) If the duty does arise it is not absolute but qualified.[20]The response of Mr Dubin for the appellant is that the first point was not taken at the trial and that in any event it was artificial to isolate the respondents’ original decision to take proceedings. Rather the situation was a continuing one after the commencement of proceedings or, if one prefers, a series of decisions to continue. On the second point he argues for a wide interpretation of enjoyment of the premises and on the third that the duty on the respondents is a very high one.

Analysis

[21]Section 24A introduced into the 1995 Act an obligation on the controller of premises (which the respondents undoubtedly are) not to discriminate against a disabled person to whom the premises are let. Again it is indisputable that the appellant is such a person. Discrimination is defined, for these purposes, as a failure to comply with the duty imposed under section 24D when the respondents cannot show their failure was justified.[22]Turning to section 24D the question is whether a term of the appellant’s tenancy agreement (namely the prohibition against keeping animals in the premises) makes it impossible or unreasonably difficult for her to enjoy the premises. If that question is answered in the affirmative one must then turn to see if the two conditions in the sub-section 24D(2) are satisfied. The first is that the “no animals” term would not have that effect if the appellant did not have the disability of bipolar disorder. The second is that the respondents have received a request from the appellant that it is reasonable to regard as a request they change the term to stop it having that effect. If those conditions are satisfied the duty on the respondents is to take such steps as are reasonable in all the circumstances to change the term to stop it having that effect.[23]It is emphasised that the duty owed under section 24D is to the appellant rather than to disabled persons generally as, for example, the duty under section 49A of the Act. As I have said, I agree with the judge that this case is not concerned with the section 49A duty.[24]The limited nature of the section 24D duty is apparent from the provision in section 24E (1) that it is never reasonable for a controller of let premises to have to take steps consisting of, or including, the removal or alteration of a physical feature. This seems to me to reflect the draftsman’s appreciation that, as in this case, there may be a superior landlord or landlords and sub-leases under the head lease.

The Trigger issue

[25]The trigger issue only arises on the respondents’ notice. The short point taken by Mr Glen is that the decision to serve the section 21 notice was taken prior to the service of the notice which was on 5 June 2008, but the request triggering the section 24 duty was not made until 2 September 2008. Thus the duty had not arisen when the notice was served. For my part I am unimpressed by this point because it is not just the commencement of the proceedings, but their continuation until judgment that is relevant. However, the point only arises if the appeal would otherwise succeed and it is, in my judgment, unnecessary to go into it further.

The comparator issue

[26]On the comparator issue the essential question is whether the “no animals” clause would have had the same effect on the appellant but for her disability. The problem the appellant faces is that when she moved in she did not need a dog in order to live at the premises. Alfie is therefore different from a guide-dog and cannot be compared as the equivalent to a medicine. In short, Mr Glen argues that the appellant does not need Alfie to “enjoy” the premises. Alfie has, he submits, nothing to do with the premises, only with her state of mind. When the appellant took Alfie in she did not do so in order to assist her rehabilitation or help her enjoyment of the flat. She took him in to give him a home. The benefit to her turned out to be an incidental benefit of having Alfie. Mr Glen draws attention to paragraph 5 of the appellant’s statement of 19 November 2008 which reads:
“Although the (respondents) have requested me to give up Alfie, they have failed to realise the impact such a decision would have on my life and my mental health. I did not give Alfie up prior to the service of notice or issue of proceedings, as I have no wish to live at Itchen Court without Alfie. I consider him to be a member of my family. After the breakdown in my marriage and the subsequent Children Act Orders that were made it made me feel like I had lost my children, as they remained in the family home and I was alone in my flat with nowhere for them to stay with me. Although I do now have more time with my children, Alfie is my reason to get up every morning and I feel it would really be the last straw if I lost Alfie too.”
[27]The appellant submits that the loss of Alfie would have a detrimental effect on her health and no issue is taken with that, but the point is made that the death of Alfie would not make it impossible or unreasonably difficult for the appellant to live in the premises. As

the judge found in his judgment at paragraph 83:

“If the (appellant) did not have her disability she would still find it impossible or unreasonably difficult to enjoy the premises without the dog because in reality it is the enjoyment of companionship of the dog rather than the enjoyment of the premises which, on the evidence, is primary.”
[28]In my judgment therefore the appellant does not overcome the first hurdle in section 24D because the “no animals” term does not make it impossible or unreasonably difficult for her to enjoy the premises. It seems to me that the right to enjoy the premises is dictated by the terms of the lease itself. That right cannot exceed what the letting entitles the tenant do.

The reasonable steps issue

[29]In the grounds of appeal the appellant admits that the head lessor refused to permit the respondents to change their letting terms and that they threatened to forfeit the respondents’ lease of the premises if the appellant continued to occupy them together with Alfie. The Code of Practice paragraph 15.44 poses the question:
“What if third party consent is required for a change of terms?”
It answers it:
“A controller of let premises may be required to obtain the consent of another person to change a term of a letting. If the change would otherwise be a reasonable one for the controller to have to make under the reasonable adjustment duty, the 2006 Regulations provide that it is reasonable for the controller to have to request that consent but it is not reasonable for him to have to change the term of the letting before that consent is obtained. Thus, if the controller does not obtain the consent, it will not be in breach of the Act if he does not make a change.”
The reference to the 2006 Regulations is to Regulation 6 of the Disability and Discrimination (Premises) Regulations 2006 SI 2006/887 At paragraph 15.45 the Code poses the further question:
“What is meant by reasonable steps?”
Among the factors it spells out as to what might be taken into account are the effectiveness of any proposed step and whether it would be practicable to take it.[30]The Code of Practice is prepared by the Disability Rights Commission. It is a guide and no more than that. It is a statutory code that has been approved by Parliament. It is admissible in evidence and the court must take account of any part that appears to be relevant, but it is not an authoritative statement of the law.[31]The insurmountable problem faced by the appellant is that changing the terms of her lease would have provoked forfeiture of the respondents’ lease from the head lessor. The judge found that the respondents could not delete or modify the “no animals” clause in the appellant’s lease in the face of a refusal by the head lessor to countenance the presence of the dog. As the judge pointed out, due regard must be paid to all the circumstances; those circumstances include that the appellant was intent on continuing breach and the head lessor was plainly not going to overlook the respondents’ consequential breach of its lease. Other relevant circumstances are, in my view, that the appellant sought and was refused permission for Alfie but nevertheless went on to take the risk by having him. As the Chancellor pointed out in argument the appellant is seeking to rely on her own wrong and the court will not assist a breach of covenant. It was critical for the respondents to avoid forfeiture of their lease which is a valuable asset and it would in my judgment not be reasonable to expect them to take any step that might bring that about. I agree with Mr Glen that it was up to the appellant to identify the reasonable steps the respondents should have taken but failed to take. This they have manifestly failed to do. As Elias J, as he then was, said in Project Management Institute v Latif [2007] IRLR 579 at para 54 in a slightly different context, but also dealing with the 1995 Act:
“there must be evidence of some apparently reasonable adjustment which could be made.”
[32]What else could the respondents have done? The head lease makes clear that the leases relating to other premises at Itchen Court contain an identical provision relating to the keeping of pets or animals. It is true that this is not an absolute prohibition, as in the appellant’s lease, and it may be possible to obtain the consent of the managing agents to keep a dog, because the head lessor has provided a list of breeds that may be allowed. This does not, however, include a Jack Russell/Border Collie cross. Alfie’s persistent barking (a common propensity with Jack Russells) was disturbing the neighbours and it was this that led to the letter of 4 February 2008. The judge found as a fact that Alfie does bark and he further found that keeping Alfie on the premises was not within the bounds of reasonable possibilities. Even if Alfie was the type of dog for which the head lessors would give consent (which he is not) withdrawal of consent would, the judge found, be a certainty.[33]In my judgment there was no purpose in the respondents going back to the head lessors to see if they would change their mind. The answer would, inevitably, have been the same.

Conclusion

[34]in Lewisham LBC v Malcolm [2008] 3 WLR 194, [2008] UKHL 43 Lord Neuberger of Abbotsbury pointed out at paragraph 148 that there was much to be said as a matter of general policy for the view that the court should lean in favour of an interpretation which assists the beneficiaries of anti-discrimination legislation but that the legitimate interests of those whose common law rights are affected by the legislation have also to be borne in mind. Whilst one inevitably has sympathy for the predicament in which the appellant finds herself this is not a case where the interpretation of the legislation can be stretched in order to assist her. Its meaning is clear. In my judgment the appellant fails on the facts found by the judge both to show that the “no animals” term discriminated against her on the grounds of her disability and that if it did there was nothing the respondents could reasonably have done about it. The “no animals” provision was in the appellant’s tenancy agreement and the head lease for a purpose. Mr Dubin’s argument means that the appellant’s Bipolar disorder effectively trumps her contractual agreement with the respondents and the respondents’ agreement with the head lessor as well as the interests of the other occupiers of Itchen Court. I cannot accept that on the facts found by the judge this is so. Accordingly I would dismiss the appeal. Lord Justice Thomas: I agree. The Chancellor of the High Court: I also agree.