A recent judgment as handed down by Cardiff County Court, confirms the rights that disabled people have to make related alterations to their property under the Equality Act 2010 (the act).
The case of Smailes & Poyner-Smailes v Clewer Court Residents Ltd is a potentially significant case for disabled people on the application of the act to leasehold covenants, and which enables disabled people to remain in their homes.
The facts of the case surround Mr Smailes and Ms Poyner-Smailes who bought a two bedroom residential property in 2014, in a victorian building converted to flats in the 1980s. Ms Poyner-Smailes suffers from several conditions that give rise to difficulties in walking and standing. She requires the use of a wheelchair on occasion and the severity of her difficulties varies on a day-to-day basis.
In order to make the property more suitable for Ms Poyner-Smailes’ needs, the couple engaged the use of builders to carry out the renovations. The renovations did not involve the removal of any walls, but did involve ‘the cutting of a single doorway from a bedroom into a wall which was not a structured wall’. The couple started the works in early 2014 without express permission, as they took the view that the works were not ‘structural’ within the meaning of the relevant lease clause, so as not to change any party or loadbearing walls.
In May 2014, the defendant asked for the works to stop and asked for a report of the proposed renovations to be provided. This was provided by the couple, confirming that the door was to a non-loadbearing wall, and that insulation would be applied to prevent any noise pollution. The defendant, upon receipt of the reports, instructed a solicitor to enforce the lease if the renovations recommenced.
The renovations subsequently stopped and despite a resolution trying to be reached by both parties, including mediation, this was proven to be fruitless.
The couple subsequently moved out of the property and such, this remained in an unfinished state as of 2017. The couple sought to propose claims under the act for discrimination harassment and victimisation, all of which were denied by the defendant.
Duty to provide reasonable adjustments
The crux of this matter was the claim pursued by the couple in respect of the alteration clause and the duty to make reasonable adjustments. Section 20(3) of the act provides that:
“…where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”
Furthermore, schedule 4 paragraph 2(7) provides that, “if a term of the letting that prohibits the tenant from making alterations puts the disabled person at the disadvantage… A 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 argued that they were not in breach of the duty as they refused to provide consent to the renovations. The defendant further argued schedule 4 paragraph 2(8), namely that, “it was unreasonable for A to have to remove or alter a physical feature.”
The court considered the Disability Discrimination Act 1995, which made clear that it was acts of removal or alteration by the manager/lessor that were excluded. It was held that the change in wording to the act was not intended to limit the scope of the duty to exclude all alterations, whether by the manager/lessor/lessee.
The court found in favour of the claimants and it was considered that Ms Poyner-Smailes had been put at a substantial disadvantage by the defendants, both in not being provided consent for the renovations, but also attaching conditions to pay for the defendant’s surveyor and legal costs. It was decided that the defendant was in breach of its duty under s.20(3).
A finding of harassment under section 26 of the act was also made, namely in response to way the meeting conducted by or on behalf of the defendant, amounted to unwanted conduct in light of Ms Poyner-Smailes’ disability. It was decided that the conduct amounted to creating a humiliating environment for Ms Poyner-Smailes’, in accordance with section 26 under the act.
This new case, as handed down by the court on 30 January 2019, provides clarity on the reasonable adjustments for which disabled people can remain in their homes. The judgment confirms the rights for disabled people and the related alterations to their homes which can be pursued under the relevant sections of the act. If a reasonable adjustment is requested by a disabled person, it is important for the managers/lessors to keep in mind the act, and the obligations placed upon them to deal with requests for such reasonable adjustments.
Should you feel that you have been discriminated against by your landlord or other service provider, please do not hesitate to contact the discrimination team at Stephensons in order to explore the advice and assistance which may be available to you on your circumstances on 01616 966 229.