Thomas-Ashley v Drum Housing Association Ltd

A landlord’s duty to change a term of a letting under section 24D of the Disability Discrimination Act 1995 arises only where the term makes it impossible or unreasonably difficult, because of the tenant’s disability, to enjoy the premises or a benefit of the letting. Enjoyment of the premises is confined by the rights granted under the letting.

Even where the duty is engaged, the required step must be reasonable in all the circumstances. A landlord is not required to alter a tenancy term where doing so would expose its own superior lease to forfeiture. The tenant must identify an apparently reasonable adjustment which the landlord could make.

The appellant held an assured shorthold tenancy of a flat under a tenancy agreement prohibiting animals. She kept a dog which was found to be essential to her rehabilitation from bipolar mood disorder. The respondent housing association served notice under section 21 of the Housing Act 1988 and obtained possession in the Southampton County Court.

The appellant contended that enforcement of the prohibition unlawfully discriminated against her under sections 24A and 24D of the Disability Discrimination Act 1995. The head lessor had refused consent for the dog and threatened enforcement of the head lease. The central issue was whether the no-animals term triggered, and could be accommodated by, the statutory reasonable-adjustment duty.

1. Appeal dismissed unanimously. The appellant had not established that the no-animals term discriminated against her under sections 24A and 24D of the Disability Discrimination Act 1995.

2. Sir Scott Baker held that the section 24D inquiry begins with whether the term makes it impossible or unreasonably difficult for the particular disabled tenant to enjoy the premises. The tenant’s right of enjoyment is dictated by the letting and cannot exceed what the letting entitles her to do. The benefit of the dog was companionship and an improvement in her state of mind, rather than an aspect of enjoyment of the flat. The term therefore did not create the requisite difficulty in enjoying the premises.

3. The statutory comparator condition also required that the adverse effect would not arise but for the disability. The judge’s findings supported the conclusion that the claimed difficulty concerned loss of the dog’s companionship, not occupation of the premises as such.

4. In any event, no reasonable step had been identified. Altering the tenancy term would have placed the respondent in breach of its head lease and exposed it to forfeiture. It was critical for the respondent to avoid forfeiture of that valuable asset. It would not be reasonable to require a step carrying that consequence, particularly where the appellant had sought permission, been refused, and nevertheless kept the dog. Applying [2007] IRLR 579, there had to be evidence of an apparently reasonable adjustment.

5. The Court did not determine whether a request made after service of a section 21 notice could trigger the duty, although it considered that the continuation of possession proceedings up to judgment was relevant. Section 49A of the Disability Discrimination Act 1995 did not provide a defence to the possession claim.

• Court of Appeal (Civil Division) — dismissed the tenant’s appeal in [2010] EWCA Civ 265.
• Southampton County Court — H.H.J. Murphy made a possession order after holding that the tenant had no defence to the landlord’s section 21 claim.