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04/11/2010

DDA & DIY

Beedles v Guiness Northern Counties Limited (2010) High Court (Manchester) (QB) HQ10X02893 [Not on Bailii yet].

This is an intriguing case sent to us on the nature and extent of the duty to provide an auxiliary aid or service under S.24C Disability Discrimination Act 1995 (involving a point which will still be relevant for the Equality Act 2010). There will be more to come, as Mr Beedles has been given permission to appeal, on grounds we’ll come back to below.

Mr B was the assured tenant of GNC. Mr B suffers from grand mal epilepsy, with frequent seizures, up to a few per day despite being on anti-convulsant medication. He therefore avoided situations in which a fall might lead to greater injury, such as being up a ladder.

Mr B’s tenancy agreement specified that:

You must keep the inside of your home and any of our fixtures and fittings in repair. You must also keep your home clean and in a good state of decoration, allowing for fair wear and tear. You must decorate all internal parts of your home as often as necessary, to keep them in reasonable decorative order.

Mr B had not done this for some considerable period of time. There was no question of GNC acting on that breach of tenancy agreement. The interior of the property, in which Mr B spent much of his time, was in a poor state, with paper peeling off the walls and paint in need of renewal. Decoration work involving ladders, or, for instance, decorating windows would present a considerable risk to Mr B due to the nature of his disability.

Mr B was reliant on benefits. His position was that while he could probably afford materials, he could not afford to pay for someone to decorate and there was no-one else to assist him. He contacted GNC to ask whether they would pay for redecoration to be carried out – or carry it out. GNC refused and later confirmed that there was a policy not to assist tenants with interior decorative works.

A claim was brought by Mr B that GNC’s refusal was a breach of its duty under s.24C DDA 1995

S.24C reads:

Duty for purposes of section 24A(2) to provide auxiliary aid or service

(1)Subsection (2) applies where—
(a)a controller of let premises receives a request made by or on behalf of a person to whom the premises are let;
(b)it is reasonable to regard the request as a request that the controller take steps in order to provide an auxiliary aid or service; and
(c)either the first condition, or the second condition, is satisfied.

(2)It is the duty of the controller to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to provide the auxiliary aid or service (but see section 24E(1)).

(3)The first condition is that—
(a)the auxiliary aid or service—
(i)would enable a relevant disabled person to enjoy, or facilitate such a person’s enjoyment of, the premises, but
(ii)would be of little or no practical use to the relevant disabled person concerned if he were neither a person to whom the premises are let nor an occupier of them; and

(b)it would, were the auxiliary aid or service not to be provided, be impossible or unreasonably difficult for the relevant disabled person concerned to enjoy the premises.

(4)The second condition is that—
(a)the auxiliary aid or service—
(i)would enable a relevant disabled person to make use, or facilitate such a person’s making use, of any benefit, or facility, which by reason of the letting is one of which he is entitled to make use, but
(ii)would be of little or no practical use to the relevant disabled person concerned if he were neither a person to whom the premises are let nor an occupier of them; and

(b)it would, were the auxiliary aid or service not to be provided, be impossible or unreasonably difficult for the relevant disabled person concerned to make use of any benefit, or facility, which by reason of the letting is one of which he is entitled to make use.

GNC’s position was that it was under no duty to secure redecoration, in common law or under the DDA.

At trial, the key issue was the interpretation of the term ‘enjoyment’ in (3)(a)(i) and (3)(b). Mr B had indeed made a request for an auxiliary aid or service, so the question was whether the conditions set out in 24C(3) and (4) were met. What this came to was whether it was impossible or unreasonably difficult for Mr B to enjoy the premises without the service of decorating he had requested.

Mr Justice Langstaff held that ‘enjoyment’ was to be understood in the sense it holds in landlord and tenant law. He found authority for this in Thomas Ashley v Drum Housing Association Limited [2010] EWCA Civ 265 (our report here) in which a ‘no animals’ term in the tenancy was found not to make it impossible or unreasonably difficult for the tenant to enjoy the premises. Langstaff J found it was probably part of the ratio of Ashley that enjoyment “meant the right to enjoy the premises as dictated by the terms of the lease and a right to enjoyment was no wider than those terms.”

And also:

there is a difference in wording between section 24C, where the word “enjoyment” is used, and 24C(3) and 24C(4). 24C(4) is not concerned with enjoyment or use of the premises themselves under the terms of a lease. It is concerned, instead, with the use of a benefit or facility of which the tenant is entitled to make use because he is the tenant. It is not difficult to think of practical examples. The right to access a communal garden in a London square, may, for instance, go with the right to a tenancy of a flat around the edge of the square. Modern flats may bring with them a right to use fitness facilities within the development of which they are part and so on. These are provisions in respect of which the word “use” makes sense. If the overall thrust of this part of the Act in both sections 24C and 24D had been concerned with “enjoyment” of let premises in the sense of giving pleasure, then there is no reason why the same wording would not have been used in 24C(4) as had been in 24C(3).

So, as 24C(4) does not make reference to enjoyment in relation to a use or benefit, where in the extended sense of enjoyment it could, the use in 24C(3) is to be taken in the limited ‘landlord and tenant’ sense of enjoyment of the premises.

There was a policy basis for such an interpretation:

The Act must be construed purposively but with proper regard for its scope. On one view this is to provide a benefit to those who have disabilities, to which others who do not have disabilities have no entitlement. However, I think the legislative policy is better viewed not as seeking to confer an advantage on those who have relevant disabilities, but as seeking to ensure that they are not disadvantaged, and that by provision to them of facilities or benefits which are not given to those without the disability, they may be put on an equal footing, therefore remedying disadvantage rather than conferring benefit. But on either approach, there is no scope, as it seems to me, for the Act to convey some right to general happiness which is not necessary in the context of a letting.

There was no reason to interpret the Act as requiring the provision of services in support of a concept of enjoyment which goes beyond that which would ordinarily be expected in a letting agreement.

The Code of Practice accompanying the Act was a) guidance only and b) where it appeared to use “enjoyment” in the broader sense, it was too much weight to put on one observation, not taking the word in context of statute and in the context of landlord and tenant law, “where the word ‘enjoy’ in the landlord and tenant context refers to the exercise and use of the rights conferred by the tenancy and having the full benefit of it rather than deriving pleasure from it.” See Southwark v Tanner [2001] 1 AC 1.

On “unreasonable difficulty”, firstly was there difficulty in Mr B’s use of the premises and secondly, was that difficulty “unreasonable”. The assessment of this would rely on the individual’s circumstances, but if the duty exists, it “is a duty which rests not upon the tenant himself if he has the resources, but upon the landlord.”

But on the facts, it was not unreasonably difficult for Mr B to enjoy the premises, given the limited sense of enjoyment adopted above.

Here it is not impossible for the claimant to enjoy the premises. It has not been argued to the contrary. He does enjoy the premises in the sense that he lives in the house. Is it difficult for him to live in the house as it is without the house being redecorated? I find it difficult to conclude that it actually is because taking the view I do of what is meant by enjoyment, I ask whether there is any term or condition under which he is entitled to enjoy the premises in the landlord and tenant sense the observance or benefit of which is rendered more difficult as a consequence of his epilepsy.

Claim dismissed.

Mr B has been granted permission to appeal and we understand that the grounds of appeal are roughly that:

i) Langstaff J erred in considering that the DDA was about equalising rather than conferring a positive advantage. It follows that an expansive interpetation of the term ‘enjoy’ was in accordance with the purpose of the Act.

ii) Thomas-Ashley was distinguishable in dealing with an active prohibition in the tenancy that forbade the very enjoyment that the tenant sought, where there was no such term in this case – even the reverse.

iii) The Code of Practice guidance accurately states the extended intended meaning of ‘enjoyment’ used in the Act.

We’ll keep an eye open for this one. As ‘enjoyment’ is used in the same way in the Equality Act 2010, this is a point of continuing importance.

Many thanks to Ben McCormack of Garden Court North (who acted for Mr B) for pointing us at this case.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

4 Comments

  1. S

    “Langstaff J found it was probably part of the ratio of Ashley that enjoyment “meant the right to enjoy the premises as dictated by the terms of the lease and a right to enjoyment was no wider than those terms.””

    This cannot be right (not Langstaff’s fault; he was bound by Ashley). I remember thinking this earlier this year when Ashley was decided.

    If the right to enjoyment is no wider than the terms of the lease or tenancy, what is the point of s.24C? It will never apply in a landlord and tenant relationship. Its intention was surely to add to tenancy agreements which were drafted without disabled people in mind.

    Reply
  2. Keith Lomax

    There should be a difference where, for example, the tenant was, because of their disability, unable to keep the walls clear of mould resulting from condensation, and suffer a health hazard. Certain forms of decoration could better insulate the walls and stop condensation and mould growth. I think it would be a reasonable adjustment to have the walls decorated including insulation in such circumstances, and putting a humidistat controlled extractors in the bathroom, and so on. The answer “leave you windows open and turn up the heating” would not be reasonable.

    Reply
    • NL

      Keith, as you’ll see from my comment on the Court of Appeal decision in this case – http://nearlylegal.co.uk/2011/04/a-limited-enjoyment/ – it isn’t particularly clear as a result of this case where the boundaries may be. The question seems to be ‘able to live as an ordinary tenant’, so the argument would have to be ordinary tenant could live relatively mould free by their own efforts.

      Your example may be an EPA prosecution rather than DDA/Equality Act? But an EPA prosecution wouldn’t necessarily lead to a longer term solution.

      Reply
      • Alex

        Though perhaps if the mould would have a more severe impact on the particular tenant by reason of his disability (e.g. AIDS sufferer more prone to infection) it would bring the case into the Equality Act? The argument would be along the lines of ‘well any tenant would have this mould + it might give them a bit of a cough, but it wouldn’t kill them, whereas the risk to this particular tenant is more severe’.

        Reply

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