A limited enjoyment?

Beedles v Guinness Northern Counties Ltd [2011] EWCA Civ 442

This was the appeal of the first instance decision in Mr Beedle’s claim under the Disability Discrimination Act 1995, Section 24C. We reported that case here. As we noted in that report, this is of significance for the Equality Act 2010 as the relevant provisions on auxiliary aids or services are virtually the same.

I won’t rehearse the facts at length, but Mr B was the assured tenant of GNC. His tenancy agreement made internal decorations his responsibility. It was accepted that the decorations were in a poor, rather tatty state, although dreadful. Mr B was disabled and unable to use ladders or safely be near open windows, so could not decorate himself. He brought a claim that GNC should decorate in order to enable his enjoyment of the property as an auxiliary aid or service under s.24C, which states:

Duty for the 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.

The claim failed on the Judge’s finding that ‘enjoyment’ in 24C(3) meant nothing more than the right to enjoy the premises as dictated by the terms of the lease.

Mr B appealed to the Court of Appeal.

In the Court below, Mr B had contended for an expanded sense of ‘enjoyment’, such that he could take pleasure in his tenancy rather than being made unhappy by the condition of the interior. In the Court of Appeal, Mr B had ‘moderated’ his submissions. The Court of Appeal noted that it was extremely unlikely that the draughtsman of the 1995 Act had used the term enjoyment in a more extensive manner than that set out by the House of Lords in Southwark London Borough Council v Tanner & Others [2001] 1 AC. But Mr B’s submission was now rather that:

For the appellant to be able to ‘enjoy’ his premises he ought to be able to do more than simply ‘live there’. He ought to be able to ‘live’ as would any typical tenant – whether disabled or not. – He should therefore be able to, for example: watch TV, listen to the radio, occupy himself with hobbies, have friends or family come to visit, and feel reasonably comfortable in his environment. These are the normal activities of any normal tenant, albeit that they go beyond the simple occupation of the premises.

GNC argued that there was little difference between this and the sense used by the Judge below, in that:

The use of the words “enjoy” and “enjoyment” in s.24C conveys the meaning that the tenant should be able to use those premises in “an ordinary lawful way”. That may well connote the meaning that Mr Beedles ought to be able to live in his home as would any typical tenant, whether disabled or not.

The Court of Appeal then turned to the Judge’s findings of fact in relation to the decoration. First, it was noted that GNC had said that they would not require Mr B to decorate. Secondly, the finding was that:

He can occupy the premises. Indeed he does, he lives there. He spends much time there. The nature of the disrepair is demonstrated (though with the shortcomings I have mentioned) by the photographs. To the extent that the wallpaper is peeling, it looks to me to be easily remediable in many cases, if not all, from ground level, with the assistance of a bit of paste. In cross-examination, Mr Crosfill secured agreement to the proposition that the mould or the dirt above the light could be cleaned away. A bit of sugar soap, it was said, was what was required. This is not a case in which the state of decoration is so woeful that it can be said that it would be unreasonably difficult for the claimant to continue living in the premises and enjoying the premises in that sense.

The Court of Appeal found that on the basis of this, it was impossible “to conclude that the absence of decoration undertaken by the landlord made it impossible or unreasonably difficult for Mr Beedles to “enjoy” the premises in the sense advanced now by both tenant and landlord”. The appeal would have to be dismissed.

However, given intervention by the EHRC in the case, the Court of Appeal in Moses LJ’s lead judgment decided to set out the correct approach to s.24C and s.24D. [paras 23-27]

It seems to me that that approach to the construction of the words “enjoy” and “enjoyment” does require an assessment to be made as to whether the auxiliary aid or service requested by the disabled tenant would enable him to live as would any other typical tenant in the let premises. This construction derives from Lord Hoffman’s recognition that “quiet enjoyment” connotes an ability to use the premises in “an ordinary lawful way”.

The Code of Practice “Rights of Access. Services to the public, public authority functions, private clubs and premises” (“the Part 3 Code”) provides illustrations of a landlord’s obligations under s.24C. The Code was introduced pursuant to the power contained in s.53A of the 1995 Act. A tribunal or court is required to take into account any provision of a code which appears to that tribunal or court to be relevant to any question arising in any proceedings under the 1995 Act (s.51(5)).
The appellant sought to demonstrate the width of the references to “enjoy” and “enjoyment” in s.24C by reference to examples in the Code:-
“The arthritic tenant in furnished accommodation requires a different chair in order to use the premises (15.35);
A tenant with hearing impairment has the volume on his television turned up. On complaints by other tenants the landlord provides the tenant with a set of headphones, a step which the Code describes as reasonable. The Code also describes the replacement of fuses by a management company as a reasonable step for the landlord to take.”

Although these examples were proffered in support of the appellant’s original submission, they seem to me to be sensible illustrations of the more limited submission that “quiet enjoyment” means an ability to use the premises in an ordinary, lawful way. Although these examples seem to me illustrative of the correct meaning of the section, it would be wrong in a postscript to this judgment to give any more forceful stamp of judicial approval to the examples in the Code. The examples in the Code cannot determine the meaning of the statute.

I should add that there was one point in the judgment where the judge might be understood as saying that cost of redecoration and the implications that housing associations might become liable to redecorate were irrelevant factors. The judge described that argument as “a floodgate” argument (paragraph 22). I do not agree. It seems to me issues of cost would be relevant to the question whether the steps requested were:-
“reasonable, in all the circumstances of the case, for him to have to take in order to provide the auxiliary aid or service for the purposes of s.24C(2).”

Lords Carnwath and Maurice Kay agreed, save that Carnwath LJ reserved his position “as to whether in any event the statute, in the absence of more specific words, can be read as transferring a positive contractual obligation to repair from the tenant to the landlord.”

Comment
I’m not entirely sure where this leaves us, save that ‘enjoyment’ arguably means to be able to live in a home as an ordinary tenant would. There is also the suggestion that cost could be an issue as to whether the provision of an auxiliary service or aid was reasonable in all the circumstances.

But I presume that I am not alone in not being wholly clear whether redecoration, for example, might indeed be such an auxiliary service in different circumstances to this case, where the Judge below found that the problem could reasonably be mitigated to a considerable extent by Mr B. To be able to live as an ordinary tenant would could perhaps extend to living in a reasonable state of decorative repair, even if the extended sense of taking pleasure in the premises is ruled out. If Mr B had, for instance, a permanent wheelchair user, might the relatively minor extent of works needed have weighed in the other direction?

I’m not sure that, despite the guidance provided by the Court, this case provides a clear marker for the extent or effects of sections 24C, 24D or their Equality Act equivalents. But I’m very happy to be put right in the comments.

About Giles Peaker

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, and still is Nearly Legal on Google +.
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