Landlord and tenant – Disability discrimination – Alterations – Claimant tenants carrying out alterations to flat to accommodate disability – Defendant management company issuing stop notice – Whether defendant in breach of statutory duty to make reasonable adjustments in respect of disability – Claim allowed
The claimants purchased a two-bedroom flat in Clewer Court, Newport in March 2014 by way of assignment of a long lease. Clause 4.7 contained a prohibition of any alteration to the flat. Clewer Court was a large Victorian building which was converted into flats in the 1980s. The residents were the shareholders in the defendant management company which was funded out of service charges. The second claimant suffered from various conditions affecting her health which gave rise to difficulties in walking, standing and using one or both of her upper limbs. The severity of those difficulties varied from day to day.
In April 2014 the claimants engaged builders to carry out work to their flat, much of which was intended to make it more suitable for the second claimant’s needs. None of the alterations were structural but, after the works commenced, other residents became concerned that changes to the room allocation would result in increased noise levels from rooms that were previously quiet, which would increase the noise in their own flats. The claimants commissioned expert reports at the defendant’s request which indicated that the works could be carried out without harm to other residents. However, the claimants were served by the defendant with a notice to stop the works as being in contravention of the lease. Works stopped and, despite efforts to resolve the impasse, no resolution was found. The claimants moved out of the flat which remained in an unfinished state.
The claimants brought proceedings under the Equality Act 2010 for discrimination, harassment, and victimisation. The main claim was that the defendant as controller of let premises was in breach of its duty under section 20 (3) of the 2010 Act, as further provided for in Schedule 4 thereof, to make reasonable adjustments in respect of disability. The claimants relied, in particular, on para 2(7) of schedule 4 which provided that, if a prohibition against alterations in a lease put a disabled person at a disadvantage, the controller of the premises had to change the term so far as necessary to enable the tenant to make the alterations needed to avoid the disadvantage. The defendant relied on para 2(8) which provided that it was never reasonable to have to take a step which would involve the removal or alteration of a physical feature.
Held: The claim was allowed.
(1) The scheme in force immediately prior to the 2010 Act required a landlord, where the other requirements were fulfilled, to consent to alteration of the demised premises by a disabled tenant at the tenant’s own expense. The starting point to the correct interpretation of para 2(8) was to recognise that it was an exception to the statutory duty under the 2010 Act for a controller of let premises to change a prohibition against alteration insofar as was necessary to enable a disabled tenant to make alterations so as to avoid substantial disadvantage. Moreover, the exception was absolute in its terms, in that it was never reasonable for such a controller to have to take the excepted step, i.e. one which would involve the removal or alteration of a physical feature. The ordinary meaning of the word “involve” was wide enough to embrace the meanings of “include” and “comprise”. On an ordinary reading of para 2(8), the position remained that the exclusion was limited to circumstances where the step to be taken by the controller would involve the removal or alteration of a physical feature. Consent for the claimants to carry out the works did not involve such removal or alteration. It involved only a decision to consent to such works. The express purpose of the 2010 Act was to harmonise discrimination law and to strengthen the law to support progress on equality. The duty under section 20(3) was only to take such steps as were reasonable to avoid the disadvantage to those with disabilities. In arriving at the value judgment as to what was reasonable, the interests of the landlord and neighbouring residents continued to be taken into account. The defendant’s interpretation of para 2(8) would place an undue restriction on the claimants’ rights to choose and enjoy their home. Although the wording in para 2(8) had changed, it was not fundamentally different and was not intended to restrict the right of a disabled person right to select and enjoy his or her home.
(2) In order to consider whether clause 4.7, or the defendant’s practice in respect of it, put the second claimant at a substantial disadvantage within the meaning of section 20(3), a comparison had to be made with persons who were not disabled. It was clear from the expert reports that the prohibition on alteration deprived her of a greatly enhanced quality of life in the enjoyment of her home. Compared to how a person who was not disabled would be able to enjoy the flat as his or her home without the works, that amounted to a significant disadvantage. Therefore, the defendant was in breach of its duty under section 20(3). It had treated the claimants less favourably than other residents, to whom it had granted permission for structural alterations. The second claimant was at a substantial disadvantage when occupying the flat in its original state and the proposed adaptions were reasonable and necessary to lessen that disadvantage.
(3) Consent should have been given for the works at the latest when the drainage and acoustic expert reports were made available in 2016. It was not reasonable for the defendant then to require the claimants to pay for further professional input to review the reports or to monitor the works. Such costs would not have been reasonable. The reports already obtained by the claimants at significant costs were obtained at the request of the defendant. There was no suggestion that the claimants might be required to pay for further input from professionals engaged on behalf of the defendant. The ambit of the works was relatively limited. Such a requirement had not previously been imposed by the defendant when dealing with applications for permission from other residents.
Schona Jolly QC and Bethan Harris (instructed by Weightmans LLP) appeared for the claimants; Cerys Walters (instructed by Jacklyn Dawson Solicitors, of Newport) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Smailes and another v Clewer Court Residents Association
