Disability discrimination – Lease of flat – Prohibition on keeping pets – Appellant tenant suffering from bipolar disorder – Appellant keeping dog – Respondent obtaining possession – Whether breach of duty under section 24D of Disability Discrimination Act 1995 – Whether prohibition on pets making it impossible or unreasonably difficult for appellant to enjoy premises — Appeal dismissed
The appellant suffered from bipolar disorder, a condition that caused mood disturbances with both manic and depressive episodes. She occupied a one-bedroom flat let to her by the respondent on an assured shorthold tenancy granted in 2006. The terms of the tenancy provided that the appellant was not permitted to keep pets without the prior written consent of the managing agent. That term reflected a term of the respondent’s own lease of the block of flats, which prohibited the keeping of animals at the premises. In 2007, the appellant began to keep a Jack Russell/Border Collie crossbreed dog at the flat, despite the respondent’s refusal of her request for permission. The dog belonged to the appellant’s daughter, who was no longer able to keep him. In February 2008, the respondent’s landlord wrote asking for the dog to be removed. It threatened to forfeit the respondent’s lease if the appellant continued to occupy the flat with the dog. In August 2008, the respondent served notice to quit on the appellant under section 21 of the Housing Act 1988 and brought proceedings for possession.
In her defence, the appellant claimed that the “no pets” provisions in her tenancy amounted to disability discrimination contrary to the respondent’s duty under the Disability Discrimination Act 1995. She argued that the presence of the dog was critical to her health and that she could not enjoy the premises without him. Expert evidence suggested that the companionship of the dog, and the obligation to care for and exercise him, was greatly beneficial to the appellant’s mental health and wellbeing and essential to her rehabilitation. However, the judge held that the duty of a controller of premises, under section 24D of the 1995 Act, to change a practice, policy or procedure that made it impossible or unreasonably difficult for the disabled person to enjoy the premises had not been triggered on the facts of the case. He proceeded to make a possession order. The appellant appealed.
Held: The appeal was dismissed.
The duty under section 24D would arise only if the relevant term of the appellant’s tenancy made it impossible or unreasonably difficult for her to enjoy the premises and it would not have that effect if the appellant did not have the disability of bipolar disorder. The appellant had not needed a dog in order to live at the premises when she first moved in. The dog was different from a guide dog and could not be regarded as equivalent to a medicine. The “no pets” term did not make it impossible or unreasonably difficult for the appellant to enjoy the premises since her right to enjoy the premises was dictated by the terms of the lease and that right could not exceed what was allowed by the letting.
Moreover, even if the duty had been triggered, the section 24D duty would not have required the respondent to change the terms of the appellant’s tenancy. Doing so would have been contrary to the respondent’s own lease and would have provoked forfeiture of its lease by its own landlord. It would be unreasonable to expect the respondent to take any step that would have brought about forfeiture of its lease, which was a valuable asset. Further, it was relevant that the appellant had sought, and had been refused, permission for the dog but had none the less proceeded to take the risk of keeping him. The appellant had not identified any reasonable steps that the respondents should have taken but had failed to take. Keeping the dog on the premises was not within the bounds of reasonable possibilities: Project Management Institute v Latif [2007] IRLR 579 applied.
Although the courts should lean in favour of an interpretation that assisted the beneficiaries of anti-discrimination legislation, the legitimate interests of those whose common law rights were affected had also to be borne in mind: Lewisham London Borough Council v Malcolm [2008] UKHL 43; [2008] 3 WLR 194 applied. The legislation did not assist the appellant on the facts of the instant case and her bipolar disorder could not trump her contractual arrangement with the respondent, the latter’s agreement with its own landlord, and the interests of the other occupiers of the block of flats.
Joshua Dubin (instructed by Swain & Co Solicitors, of Southampton) appeared for the appellant; Philip Glen (instructed by Coffin Mew LLP, of Southampton) appeared for the respondent.
Sally Dobson, barrister
