Housing association cleared of discrimination over no dogs clause

April 28, 2010

The Court of Appeal has ruled that a housing association was not guilty of disability discrimination when it sought to evict a mentally ill tenant who kept a dog in contravention of her tenancy agreement.

Thomas-Ashley v Drum Housing Association Ltd, Dee Thomas-Ashley, who has bipolar mood disorder, claims the presence of the dog was crucial to her health. The housing association told her that the dog would have to leave; when this did not happen the association took proceedings for possession in the Southampton County Court. At this hearing, Judge Murphy held Thomas-Ashley had no answer to the claim, as the appellant had an assured short-hold tenancy and the appropriate notice had been served under section 21 of the Housing Act 1988.

Thomas-Ashley appealed on the grounds that she could not enjoy the premises without the dog and that the housing association was in breach of its duty under section 24A of the Disability Discrimination Act 1995 in maintaining the ‘no dogs’ provision in the tenancy agreement. Expert witness evidence supported her claim that the dog promoted her mental health and wellbeing to a marked degree.

The Court of Appeal judge, Sir Scott Baker said the ‘no animals’ term did not make it impossible or unreasonably difficult for the appellant to enjoy the premises. He went on to say ‘It seems to me that 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.’

It was also pointed out by the judge:

• the appellant paid no particular attention to the nature of the agreement and its particular terms

• she asked permission to have a dog, was refused, and went on to take a risk by having it without permission

• the dog she owns is not the type of dog for which the head lessors will give consent, hence if he stays forfeiture proceedings, against which there is no defence, are inevitable

The judge found that if Thomas-Ashley did not have her disability and was not allowed to keep a dog, it would still be impossible or unreasonably difficult to enjoy the premises, because it was the companionship of the dog that was enjoyed and not the premises, there was also a further problem in that the head lessor would not countenance the dog on the premises.

The judge concluded: ‘This is not a case where the interpretation of the legislation can be stretched in order to assist her. Its meaning is clear. In my judgment the appellant fails on the facts found by the judge both to show that the “no animals” term discriminated against her on the grounds of her disability and that if it did there was nothing the respondents could reasonably have done about it.’