The Equality Act 2010 (the 2010 Act) was enacted to harmonise and strengthen discrimination law. It prohibits discrimination against people with disabilities – and a recent decision of Cardiff County Court in Smailes v Clewer Court Residents Ltd [30/01/2019] highlights how the legislation applies where premises are let to tenants with a disability.
The premises in question were on the ground floor of a Victorian building, which had been converted into flats. Mrs Poyner-Smailes and her husband purchased the lease of the flat in 2014 and wanted to adapt the premises to accommodate her needs as a sufferer of Ehlers-Danlos syndrome (which affects mobility and can result in sufferers having to use a wheelchair). But their lease contained an absolute prohibition against alterations and the management company objected to the work.
None of the alterations were structural. But other residents of the building were concerned that changes to the room allocation would result in high levels of noise from rooms that were previously quiet, which would affect quiet rooms in their own flats. The management company asked for reports, which were obtained and indicated that the work could be completed without harming other residents. But the management company continued to object to the work and the family was forced to call a halt to the alterations and move out.
Mrs Poyner-Smailes brought a claim under the 2010 Act. She argued that the management company, as a controller of let premises, was in breach of its duty under section 20(3) of the 2010 Act to make reasonable adjustments in respect of her disability. She relied, in particular, on the provisions of paragraph 2(7) of schedule 4, which provides that, if a prohibition against alterations in a lease puts a disabled person at a disadvantage, the controller of the premises must change the term so far as is necessary to enable the tenant to make the alterations needed to avoid the disadvantage.
The management company pointed to paragraph, 2(8) of schedule 4, which states that “it is never reasonable …. to have to take a step which would involve the removal or alteration of a physical feature”. But the county court ruled that the exemption applies only if a controller of premises would have to carry out alterations itself. The rules in force immediately prior to the 2010 Act required landlords to consent to alterations that disabled tenants were proposing to make at their own expense and, although the wording in the 2010 Act had changed, it is not fundamentally different and was not enacted with the intention of restricting a disabled person’s right to select and enjoy his or her home.
The management company was in breach of its duty under section 20(3) of the 2010 Act. It had treated Mrs Poyner-Smailes less favourably than it had treated other residents, to whom it had granted permission for structural alterations. Mrs Poyner-Smailes was at a substantial disadvantage when occupying the flat in its original state and the adaptions that she was proposing were both reasonable and necessary to lessen that disadvantage.
Allyson Colby, property law consultant
