Using the Equality Act to secure accessible housing and facilities for disabled people
Catherine Casserley
The Cardiff County Court last week handed down judgment in a premises case Smalies v Clewer Court Residents Ltd (Case No: B02BS101) which confirms the rights of disabled people to make disability related alterations to their homes under the Equality Act 2010 (“the Act”) and which enables disabled people to remain in their homes. The Claimants were represented by Schona Jolly QC of Cloisters. It follows the judgment last year in Plummer when the County Court held that the leisure centre operated by a residents association was subject to the service provisions of the Act, and thus promotes further the rights of disabled people to ensure that their homes and facilities are adapted to their needs. This blog by Catherine Casserley analyses the case.
Factual background
Smalies concerned a couple who had bought the lease of a 2 bedroomed residential property in 2014. The lease contained a prohibition on any alteration to the flat. Mrs Poyner- Smailes has various conditions affecting her health, including Ehlers-Danlos Syndrome, which is characterised by generalised joint hypermobility, joint instability complications, and widespread musculoskeletal pain which give rise to difficulties in walking, standing and using one or both of her upper limbs. The severity of these difficulties varies from day to day.
The couple engaged builders to carry out renovation works to their premises much of which was to make it more suitable for Mrs Poyner-Smailes. This included relocating the kitchen to the lounge and relocating the latter to a bedroom, and necessitated the creation of one internal doorway, and the stopping up of another (“the works”). After these works commenced, the Claimants were served with a notice to stop these works by the Defendant as being in contravention of the lease. Works stopped and, despite efforts by both parties to resolve the impasse, including mediation, a resolution was not found. The Claimants finally moved out in May 2017 and No 14 remains in an unfinished state. They brought claims under the Act for discrimination, harassment, and victimisation. The claims were vigorously denied by the Defendant.
Equality Act 2010 and the duty to make reasonable adjustments in relation to premises
Of particular importance in this case was the main claim by the Claimants in respect of the alteration clause. The duty to make reasonable adjustments applies to controllers of premises (essentially, those who manage them) by virtue of section 36 of the Act. Section 20(3), one of the reasonable adjustment duties, provides that a controller of premises must avoid any disadvantage caused by a provision, criterion or practice. Schedule 4 details the application of the reasonable adjustment duty in respect of premises, and paragraph 2(3) provides that a provision, criterion or practice includes a reference to a term of the letting. By paragraph 2(7) if such a term that prohibits the tenant from making alterations puts the disabled person at such a disadvantage, the controller etc. is required to change the term only so far as is necessary to enable the tenant to make alterations to the let premises so as to avoid the disadvantage.
The Defendant in this case, however, sought to rely upon the next sub-paragraph, 2(8), in submitting that it was not in breach of the duty by refusing to give consent to the works. That provides:
“It is never reasonable for A to have to take a step which would involve the removal or alteration of a physical feature.”
This was indeed a novel argument and not one that anyone who had been involved in the development of this legislation considered applied to this provision. This is because the provision had its roots in the recommendations of the Disability Rights Taskforce (“the DR2TF) report of 1999 (the taskforce having been set up when a new government came to power, to consider the gaps in the Disability Discrimination Act 1995). The recommendation of the DRTF, which had been to require those disposing of premises not to withhold consent unreasonably for a disabled person making changes to the physical features of premises, led ultimately to the legislative change in the Disability Discrimination Act 2005. This imposed a reasonable adjustment duty on premises providers for the first time – including the duty which was at issue in this case.
Judgment
HHJ Harman QC unsurprisingly, dismissed the Defendant’s argument as to the interpretation of the provision relating to the adjustment required of the controller of premises in the Act, on the basis of the following :
As was not in dispute, the scheme in force immediately prior to the Act required a landlord, where the other requirements were fulfilled, to consent to alteration of the demised premises by a disabled tenant at the tenant’s own expense.
The change of wording from the previous scheme under the DDA to that in the Act was not fundamentally different (from “consisting of, or including” to “involve”) . On an ordinary reading of paragraph 2(8), the position remains that the exclusion is limited to circumstances where the step to be taken by the controller would involve the removal or alteration of a physical feature. Consent for the Claimants to carry out the works does not involve such removal or alteration. It involves only a decision to consent to such works.
The express purpose of the Act was to harmonise discrimination law and to strengthen the law to support progress on equality; a further indication that the Claimants’ interpretation is to be preferred. The achievement of those purposes would be hindered, rather than promoted, if paragraph 2(8) were to be construed in the way contended for by the Defendant, which would impact significantly and adversely on the choice of accommodation by those with disabilities.
If further support for the Claimants’ interpretation is needed, it is found in the obligations under Articles 19 and 28 of the UNCRPR and in the strong presumption that the legislative intention is to comply with those obligations. The Defendant’s interpretation of paragraph 2(8) would in his judgment place an undue restriction on the Claimants’ rights to choose and enjoy their home under those articles
The Court thus found in favour of the Claimants.
There were also some useful findings regarding the exercise of the Court’s just and equitable discretion. Specifically tthat the primary time period for bringing the claims was “very tight”, the fact that both parties have been continuing efforts to find a solution is a factor which mitigates in favour of the exercise of discretion as does the fact of and nature of Mrs Poyner-Smailes’ disability and the lack of any specific, as opposed to general prejudice to the Defendant – see paragraph 90.
Finally, there was a finding of harassment in respect of the meeting that the Claimants had attended regarding the works that were to be carried out – the conduct of the meeting created a humiliating environment for Mrs Poyner-Smailes. This in turn caused her real upset (paragraph 104).
Conclusion
The Court’s findings as to the right to independent living echo those in Plummer v Royal Herbert Freehold Ltd , Central London County Court (Judgment available here) in which Mr Plummer was represented by Catherine Casserley. There the Court held that the resident run management company was a service provider, in respect of its management of the leisure centre which all leaseholders were members of, rather than acting as a landlord. This meant that it had an anticipatory duty under Part 3 of the Act to consider adjustments for disabled people and should have installed a stair lift to enable the Claimant, who had MS, to use those facilities.
These cases illustrate that though the premises provisions appear at first blush to be limited in their application (the duty to make adjustments is not anticipatory as it is with services), there is nevertheless much that can be done with them. Given the chronic shortage of accessible homes (see, for example, the report of the Equality and Human Rights Commission on its Inquiry into Housing and Disabled People – Britain’s Housing Crisis (2018) ) it is critical that the law operates to enable more disabled people to continue to occupy their homes and to use the facilities that come with them.