Housing association – Assured tenancy — Disability discrimination – Lease requiring disabled appellant tenant of landlord housing association to be responsible for internal decoration of flat – Appellant unable to comply and requesting respondent to undertake works – Whether respondent statutorily obliged to undertake works – Whether respondent obliged to ensure appellant enjoyed use fo flat – Appeal dismissed
The appellant was disabled and an assured tenant of the respondent landlord. The lease required him to decorate and clean the interior of the property as often as necessary to keep it in reasonable order. He said that he could not decorate because he suffered from regular epileptic seizures. The respondent waived its right to insist on internal decorating, but the appellant maintained that he could not enjoy his occupation of the property under section 24C(3)(a) of the Disability Discrimination Act 1995 because his surroundings had become shabby through neglect. He argued that the respondent was statutorily obliged to carry out repairs and decorating to a standard that would enable him to derive pleasure from his home. The respondent took the view that the appellant had no greater right under the 1995 Act than that which was conferred by the terms of his tenancy.
The judge found that the decorative problems were superficial and could be remedied easily and held that section 24 of the 1995 Act did not oblige the respondent to provide aid or services beyond what would ordinarily be expected in a landlord and tenant context, by reference to a vague concept of “enjoyment” in section 24C.
The appellant appealed. He accepted that the respondent did not have to ensure that he obtained pleasure from his tenancy. However, he contended that, in order to “enjoy” the premises, he ought to be able to live in them as any typical tenant, disabled or not, and be able to carry out hobbies, receive visitors and carry on normal activities that went beyond mere occupation of the premises.
Held: The appeal was dismissed.
The judge’s findings of fact concerning the state of the premises prevented a conclusion that the absence of decoration undertaken by the respondent made it impossible or unreasonably difficult for the appellant to “enjoy” the premises in the sense of section 24C(3)(b). The appeal was therefore doomed to fail.
The legislation had to be construed purposefully. Parliament required reasonable adjustments to be made to cater for the special difficulties of the disabled. Accordingly, anti-discrimination statutes had to be construed benevolently towards their beneficiaries. That approach to the construction of the words “enjoy” and “enjoyment” required an assessment to be made as to whether the auxiliary aid or service requested by the disabled tenant would enable him to live as would any other typical tenant in the let premises. The words “quiet enjoyment” connoted an ability to use the premises in “an ordinary lawful way”: Southwark London Borough Council v Tanner [1999] 3 EGLR 35; [1999] 45 EG 179; Archibald v Fife Council [2004] UKHL 32; [2004] 4 All ER 303 and Malcolm v Lewisham London Borough Council [2007] EWCA Civ 763; [2008] 1 AC 1399 applied.
The Code of Practice, “Rights of Access. Services to the public, public authority functions, private clubs and premises” (4 December 2006) provided illustrations of a landlord’s obligations under section 24C of the 1995 Act. It was introduced pursuant to the power contained in section 53A of the 1995 Act. A tribunal or court had to take into account any provision of a code that were relevant to any question arising in any proceedings under the 1995 Act: see section 51(5).
The examples in the code illustrated the more limited submission that “quiet enjoyment” meant an ability to use the premises in an ordinary, lawful way. However, although those examples were illustrative of the correct meaning of the section, they could not determine the meaning of the statute. Although this case afforded yet another opportunity to encourage a benevolent approach to the 1995 Act to further its purpose of ensuring equality for the disabled, the facts precluded a successful appeal.
Benjamin McCormack (instructed by Peasegoods, of Manchester) appeared for the appellant; John Crosfill (instructed by Keoghs LLP, of Bolton) appeared for the respondent; Catherine Casserley (instructed by the Equality and Human Rights Commission, of Manchester) appeared for the intervener.
Eileen O’Grady, barrister
