Block of flats — Access by stairs — Tenant living on third-floor — Elderly tenant needing stair-lift — Landlords refusing permission to install stair-lift — Tenant claiming refusal unlawful as discriminatory against disabled person occupying flat — County court dismissing landlords’ application for summary judgment — Whether refusal of permission constituting disability discrimination — Appeal allowed
The respondent tenant was an 81-year old lady with mobility problems. She lived on the third floor of a block of 16 residential flats, as an assignee of an underlease. Her flat was served by stairs but she could get up and down the staircase only with great difficulty. She was advised by an occupational therapist that she required a stair-lift. Her appellant landlord refused to allow the installation of the stair-lift, even though it would bear no cost.
The reasons given by the appellant for refusing consent were, inter alia, (i) the other tenants had voted against the proposal; (ii) aesthetics; (iii) cost of repair; (iv) inconvenience to the residents as a whole; and (v) the Disability Rights Commission code of practice made it clear that it was not under any duty to make reasonable adjustments to the premises.
The question arose as to whether, by refusing consent, the appellant was discriminating against the respondent as a disabled person occupying her flat, contrary to section 22(3) of the Disability Discrimination Act 1995. The county court held, as a preliminary issue, that it was.
Section 24(1)(a) of the 1995 Act provided that a person would be deemed to have discriminated against a disabled person if, for a reason relating to the disabled person’s disability, he treated that person less favourably than he would treat others to whom that reason was not applicable.
The appellant appealed arguing that it had not discriminated against the respondent as defined in section 24(1)(a), since it had not interfered with her right to use the stairs and obtain access to her flat; it had done nothing to her detriment. The most that could be said against it was that it had failed to confer upon her a benefit that was not covenanted in her lease.
Held: The appeal was allowed.
The appellant had not treated the respondent less favourably within the meaning of section 24(1) of the 1995 Act. The judge had erred in failing to carry out a two-stage exercise. First, it was necessary to identify the relevant act or omission on the part of the appellant, and second, it was necessary to look to comparators to see if they were or would have been treated differently.
None of the reasons given by the appellant for refusing consent related to the respondent’s disability. The underlying complaint was that the appellant had failed to put the respondent in a better position than that to which she was entitled by her underlease, namely by failing to take positive action and providing consent to the installation of the stair-lift.
However, managers of premises were under no positive obligation to make adjustments or to agree to tenants making adjustments to the common parts of the building in order to make them more suitable for disabled people. This was in contrast to other provisions in the 1995 Act, which imposed positive obligations in clear terms. If a duty was to be imposed, this had to be by specific legislative provision defining the limits of the duty and not by distorting the existing provisions of section 24(1): Manchester City Council v Romano [2004] EWCA Civ 834; [2005] 1 WLR 2775 and Clark v Novacold Ltd [1999] ICR 951 distinguished.
Michael Daiches (instructed by Morgan LaRoche, of Swansea) appeared for the appellant; Robert Latham (instructed by Salter Kelly, of Swansea) appeared for the respondent.
Eileen O’Grady, barrister
