Housing association cleared of discrimination over no-dogs clause

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, the Court of Appeal has ruled.

In Thomas-Ashley v Drum Housing Association Ltd [2010] EWCA Civ 265, Dee Thomas-Ashley, who suffers from bipolar mood disorder, said the presence of the dog, Alfie, was critical to her health.

Appealing against the notice seeking possession, she claimed that she could not enjoy the premises without the dog and that Drum 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.

Section 24A imposes an obligation on a 'controller' of premises not to discriminate against a disabled person to whom the premises are let.

Expert witness evidence supported her claim that the dog promoted her mental health and well-being to a marked degree.

Giving the lead judgement, Sir Scott Baker said the “no animals” term did not make it impossible or unreasonably difficult for the appellant to enjoy the premises. He added: “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.”

The judge also pointed to an “insurmountable” problem for Ms Thomas-Ashley in that changing the terms of her lease would have provoked forfeiture of the respondents' lease from the head lessor.

The fact that the appellant had sought and been refused permission for a dog, but continued to take the risk of having him, was also relevant.

The judge said: “Whilst one inevitably has sympathy for the predicament in which the appellant finds herself 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 judgement 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. The ‘no animals’ provision was in the appellant’s tenancy agreement and the head lease for a purpose.”