Thomas-Ashley v Drum Housing Association Ltd [2010] EWCA Civ 265

This is probably the biggest single week for dog-related possession claims ever. At this rate, the RSPCA will have to open a housing practice.

The brief facts are at para 1 of the Court of Appeal judgment:

Alfie is a Jack Russell/Border Collie cross. He lives with the appellant in her one bedroom flat at 1, Itchen Court, Crombie Close, Lovedean in Hampshire. Unfortunately the appellant’s tenancy agreement does not allow dogs to be kept on the premises. The respondents’, Drum Housing Association Ltd. her landlords, told her Alfie would have to leave. When he did not they took proceedings for possession against her in the Southampton County Court. Judge Murphy held she had no answer to the claim; the appellant had an assured short-hold tenancy and the appropriate notice had been served under section 21 of the Housing Act 1988. The appellant appeals on the ground that she has a disability and the presence of Alfie is critical to her health; she cannot enjoy the premises without him and the respondents are in breach of duty under section 24A of the Disability Discrimination Act 1995 (“The 1995 Act”) in maintaining the “no dogs” provision in her tenancy agreement. Accordingly, it is submitted the possession order should not have been made and should be set aside.

For one glorious moment, I thought Alfie was the appellant, but no. Alfie’s owner had resisted possession proceedings following service of a s.21 notice on grounds that the presence of Alfie was beneficial to her mental health – she suffers from bi-polar disorder – and medical evidence was presented to that effect. She argued that the Claimant/Respondent was under a duty to make reasonable changes to practice, policy, procedure or term where that practice etc. has the effect of making it impossible or unreasonably difficult for the disabled person to enjoy the premises, and the practice etc. would not have that effect if the relevant disabled person did not have a disability (sections 24A(2), 24D and 24E Disability Discrimination Act 1995). The Claimant/Respondent argued that the head lessor would not permit such a dog, which the court found ‘did bark’, to remain in the property and would move to forfeit the Claimant’s lease. Further, the duty not arise if the term would make occupation of the premises unreasonably difficult or impossible even if the person concerned was not disabled and if it did arise, it was qualified, not absolute.

The first instance DJ held that a request to make adjustments had been made, that the Defendant was disabled but that the evidence showed she had lived there without a dog for some time, so that it was not impossible for her to enjoy the premises without Alfie. Further, what was critical was that if the appellant did not have her disability and was not allowed to keep Alfie in the premises she would still find it impossible or unreasonably difficult to enjoy the premises, because in reality it was companionship of the dog that she enjoyed rather than enjoyment of the premises (the comparator point). In addition, the head lessor’s position on the dog was an insurmountable fact.

On appeal, the Respondents made the same points and in addition argued that the S.24 duty only arose if triggered by a relevant request and any request here was made after the decision to bring proceedings and service of the s.21 Notice.

The Appellant argued that:

• Enjoyment of the premises should have a wide interpretation on the comparator point;
• The duty once arisen is a high one; and
• The ‘trigger’ point had not been taken at trial, but in any case the relevant decision is a continuing one, not confined to the initial decision to bring proceedings.

Held:
The relevant decision was indeed a continuing one, so that the fact that the ‘relevant request’ had been made after service of the s.21 Notice did not make any difference. So:

the question is whether a term of the appellant’s tenancy agreement (namely the prohibition against keeping animals in the premises) makes it impossible or unreasonably difficult for her to enjoy the premises. If that question is answered in the affirmative one must then turn to see if the two conditions in the sub-section 24D(2) are satisfied. The first is that the “no animals” term would not have that effect if the appellant did not have the disability of bipolar disorder. The second is that the respondents have received a request from the appellant that it is reasonable to regard as a request they change the term to stop it having that effect. If those conditions are satisfied the duty on the respondents is to take such steps as are reasonable in all the circumstances to change the term to stop it having that effect.

The first issue is the comparator point. Would the ‘no animals’ clause have the same effect on the appellant but for her disability? It was the case that she had lived at the property for some months prior to getting Alfie and, although no issue was taken that the loss of Alfie would have a detrimental effect on her health, the point was made that, for example, the death of Alfie would not make it unreasonably difficult or impossible for her to enjoy the premises. It was the enjoyment of the companionship of Alfie rather than the enjoyment of the premises that was paramount here. The first hurdle in s.24D was not overcome for that reason. The no animals term did not make her enjoyment of the premises unreasonably difficult or impossible and “the right to enjoy the premises is dictated by the terms of the lease itself. That right cannot exceed what the letting entitles the tenant do.”

On the reasonable steps issue, although this was not necessary to hold, it was noted that the Code of Guidance and Regulation 6 of the Disability and Discrimination (Premises) Regulations 2006 SI 2006/887 said that if third party consent was required for a change of terms, the controller of the premises is not in breach of the Act if it fails to make the change before that consent is received as it is not reasonable for it to have to do so. Here the evidence was that the head lessor would not consent. While the Code was a statutory guidance and nothing more, the Respondent could not be required to make an adjustment that would have lead to forfeiture of its own lease.

Further, having sought and been refused permission to keep Alfie, the Respondent was effectively relying on her own breach of the tenancy agreement and the Court will not assist a breach of covenant.

What else could the respondents have done? The head lease makes clear that the leases relating to other premises at Itchen Court contain an identical provision relating to the keeping of pets or animals. It is true that this is not an absolute prohibition, as in the appellant’s lease, and it may be possible to obtain the consent of the managing agents to keep a dog, because the head lessor has provided a list of breeds that may be allowed. This does not, however, include a Jack Russell/Border Collie cross. Alfie’s persistent barking (a common propensity with Jack Russells) was disturbing the neighbours and it was this that led to the letter of 4 February 2008. The judge found as a fact that Alfie does bark and he further found that keeping Alfie on the premises was not within the bounds of reasonable possibilities. Even if Alfie was the type of dog for which the head lessors would give consent (which he is not) withdrawal of consent would, the judge found, be a certainty.

Appeal dismissed.

*Not Toto.