Joint Committee on the Draft Disability Discrimination Bill

Joint Committee on the Draft Disability Discrimination Bill Written Evidence

DDB 2 Disability Rights Commission

Disability Rights Commission

Briefing note on the need to extend the Disability Discrimination Act to cover landlord's consent to building alterations.

5 February 2004.

The Draft Disability Discrimination Bill's proposals concerning landlords' duties to permit adaptations where needed by disabled occupiers are confused, incomplete and provide an inadequate basis for systematic action to tackle the persistent problems in this area which can leave disabled people a prisoner in their own homes.

Present situation

Sections 22 - 24 of the Disability Discrimination Act (DDA) prohibit the unjustified less favourable treatment of disabled people by persons managing or disposing of premises. Currently, however, these premises provisions of the DDA impose no duty on such persons to make reasonable adjustments to policies, procedures or practices, to provide auxiliary aids or services; or to make adjustments to premises.

Draft Disability Bill proposals

The Draft Bill extends the DDA's duties on those disposing of premises to include a duty to make some forms of reasonable adjustments. This would mean that, where reasonable, a landlord might be obliged to:

Allow a tenant with mobility difficulties to leave her rubbish in another place if she cannot access the designated place.

Change or waive a term of the letting to allow a tenant to keep an assistance dog on the premises.

Change or waive a term of the letting which forbids alterations to the premises so that a disabled tenant could make necessary access alterations with the consent of the landlord.

In addition, landlords would also be placed under a duty to take reasonable steps to provide an 'auxiliary aid or service' which would enable or make it easier for a disabled person to rent the property or to facilitate a disabled tenant's enjoyment of the premises. For example, a landlord might need to read out a tenancy agreement to a visually impaired person. A landlord would not have to provide an aid or service which is not directly related to the premises - for example a landlord would not have to provide a mobility aid, such as a wheelchair, that a disabled person would need for their general purposes.

DRC Concerns

The Draft Bill does not implement the Disability Rights Task Force recommendation that, in civil rights legislation, landlords should not be allowed to withhold consent unreasonably for a disabled person making changes to the physical features of the premises. The Government (in Towards Inclusion) originally accepted this recommendation. However they now appear to reason that this is unnecessary, because the Landlord and Tenant Act of 1927 already applies.

Our understanding of the position in England and Wales if the Bill is passed:

Where there is a provision in a lease or tenancy agreement that allows the making of "improvements" but only with the consent of the landlord, then section 19(2) of Landlord and Tenant Act of 1927 (LTA) implies a term within the lease that such consent can not be unreasonably withheld and that where consent is given subject to conditions, e.g. reinstatement at the end of the lease or tenancy, any conditions must themselves be reasonable[18].

Section 19(2) will not apply if the lease is silent on the issue of alterations or improvements or if it contains an absolute prohibition against them. It applies only if there is a clause in a lease making the carrying out of improvements conditional on the landlord's consent.

If a lease contains no clause governing the tenant's ability to alter or improve the premises, and no term is implied, the tenant may carry out alterations to the premises. Only in two circumstances will they be prevented from doing so - first, if the alteration would amount to 'waste' and, second, if it would constitute a breach of an express repairing covenant[19].

Where there is an absolute prohibition on all adjustments the LTA 1927 would not apply. However, the Explanatory Notes for the Draft Bill suggest that under the new provisions requiring a landlord or manager to take reasonable steps to change a policy, practice or procedure which makes it impossible or unreasonably difficult for a disabled person to enjoy the premises a landlord or manager may be obliged (where it is reasonable to do so) to change or waive a term of the letting which forbids any alterations to the premises, so as to allow a disabled tenant to make alterations needed by reason of his disability with the consent of the landlord. If a term in the letting prohibiting any alterations was replaced with one permitting alterations with the landlord's consent, then s 19(2) of the 1927 Act would apply and provide that a condition in a lease or tenancy agreement forbidding a tenant from carrying out improvements to the premises without the landlord's consent should be read as one saying that such consent is not to be unreasonably withheld.

Our understanding of the position in Scotland if Bill is passed:

The Bill would have no effect on the present legal position in Scotland which is as follows.

Public sector housing

Most public sector housing in Scotland is now governed by the Housing (S) Act 2001. This introduced the concept of registered social landlords e.g. local authorities, housing associations etc. The majority of RSL tenants were transferred on to a new form of Scottish secure tenancy on 30 September 2002.

The Housing (S) Act 2001 section 28 states:

It is a term of every Scottish secure tenancy that the tenant is not to carry out work, other than interior decoration, in relation to the house without the consent in writing of the landlord, which must not be unreasonably withheld.

In this section and Part 1 of schedule 5, "work" means-

(a) alteration, improvement or enlargement of the house or of any fittings or fixtures,

(b) addition of new fittings or fixtures,

but does not include repairs or maintenance of any of these.

(3) The provisions of Part 1 of schedule 5 have effect as terms of every Scottish secure tenancy.

The Scottish Ministers may issue guidance to landlords as to the standards to which different descriptions of work should be carried out and as to the matters to which landlords should have regard in considering imposing conditions under paragraph 2(b) of schedule 5 as to the standard of work.

Schedule 5 then sets out how tenants should apply for the right to make alterations. The landlord can consent, consent with conditions, or refuse. When deciding whether to impose conditions, the landlord must have regard to:

(a) the age and condition of the house,

(b) the cost of complying with the condition, and

It the tenant is unhappy with the landlords decision she can apply to the courts to have it overturned. The court must overturn the refusal, or remove the condition, unless it considers it to be reasonable. When considering what is reasonable the court must have regard to:

the safety of occupiers of the house or of any other premises,

any expenditure which the landlord is likely to incur as a result of the work,

whether the work is likely to reduce the value of the house or of any premises of which it forms part, or to make the house or such premises less suitable for letting or for sale, and

any effect which the work is likely to have on the extent of the accommodation provided by the house.

It is perhaps unfortunate that in such new legislation, there is no express right to alterations to accommodate disability. However, it is likely that both the landlord and the court would take the disability of a tenant or family member into account when considering the reasonableness of a decision to refuse consent. While there are a number of cases dealing with disrepair, there is no case law in the area of alterations.

The experience of the DRC Scotland office however, is that landlords consent may not be the problem for those living in flats who require adjustments to common parts. Two case studies, one brought to our legal surgery and one request for help by a local MSP, indicated that the real area of difficulty was the consent of neighbour owner-occupiers. Since right to buy legislation was introduced it is common that a local authority does not own all of a block of housing. In both cases reported to us, the landlord had consented to necessary adjustments, but other owners in the block refused. The housing legislation does not deal with this issue at all and the tenant could not make the necessary.

Private rented sector

In essence there is no right to carry out alterations of any kind in private rented accommodation. There has never been a common law right to have repairs carried out or to be permitted to carry out alterations. A statutory right to repairs was introduced in 1962 but no right to make alterations. An individual tenancy may contain the right, if negotiated between landlord and tenant, but there is no other right.

The Office of Fair Trading have produced guidance in relation to unfair contract terms in tenancy agreements, but only for England and Wales. There is no Scottish version and no present intention to produce one.

SCOTTISH EXECUTIVE PLANS

A Housing Improvement Task Force was set up by the Executive 2 years ago and it reported in March 2003. The report contains a number of findings relating to disabled people's housing difficulties, for example they are likely to be in lower socio-economic groups and therefore in worse housing, they have particular difficulties in accessing reliable contractors, and it is particularly difficult to find adapted accommodation. The report was consulted upon and Scottish Ministers responded in December 2003.

The Task Force report contained 151 recommendations, one of which states:

"The provisions of the Housing (Scotland) Act 1988 should be amended to the effect that private sector tenants should have a right to carry out adaptations to their home to meet any particular needs arising from a disability. This right should be subject to the consent of the landlord but such consent should not be unreasonably withheld. The proposed Tribunal should have a power, on application from a tenant, to determine if such a refusal is unreasonable."

Deficiencies of proposed legislative framework

a. Complexity

As will be apparent from the above discussion the resulting provisions will be very complex. They would require a term (such as one prohibiting alterations) to be adjusted only if this is considered 'reasonable' and if none of the specific justification defences apply. Thus, a disabled tenant needing physical alterations which are prohibited by the lease would have to show first that it would be reasonable to amend the term prohibiting alterations (as well as rebutting any alleged justification for adherence to the term) and then, second, they would have to show that the landlord's refusal of consent to the proposed alterations was unreasonable under LTA s 19.

This is complex and care would have to be taken to keep inconsistencies of approach to the meaning of 'reasonableness' in the two contexts to a minimum. Even if such inconsistencies could be avoided, anachronistic results may still occur. The first issue would fall under the DDA whereas the second would not. Thus, a tenant who successfully argued that a term should be amended would have established that they had been the victim of unlawful discrimination and may be awarded damages for injury to feelings etc. They may also receive support from the DRC in respect of this claim. Such damages and support would not be available in respect of the s 19 claim.

b. Lack of a rights based approach

Whilst the LTA 1927 (where it applies) states that the landlord will not be able to withhold consent unreasonably, it cannot be assumed that "reasonable" will be assessed by courts and landlords along the principles applying to reasonableness under the DDA . And of course for tenants the way in which the reasonableness test is applied will be extremely important.

In the context of LTA s 19 2, most of the cases on reasonableness have concerned the sum required by the landlord by way of compensation for damage to the premises (or neighbouring premises owned by the landlord) or for diminution in their value. According to Woodfall[20], there is "surprisingly little authority as to what other grounds for refusing consent may be upheld as reasonable". The Court of Appeal in Lambert v Woolworth[21] considered it important that landlords should be able to rely on aesthetic, artistic or sentimental grounds. Whether such grounds would make it reasonable for a landlord to withhold consent to an alteration in any particular case is likely to be decided by reference to the same principles which apply, at common law, to determine whether consent to an assignment has been unreasonably withheld[22].

In that context three "overriding principles" were identified by Lord Bingham in Ashworth Frazer v Gloucester CC[23]. First, the withholding of consent will not be reasonable if it is based on grounds irrelevant to the relationship of landlord and tenant with regard to the subject matter of the lease[24]. Second, the question is essentially one of fact depending on all the circumstances of the particular case[25]. Thus, according to Lord Bingham, "care must be taken not to evaluate a decision made on the facts of a particular case into a principle of law"[26]. Third, the landlord need not prove that their reasons for withholding consent were justified provided that they were reasons which might have influenced a reasonable man in the circumstances[27]. Thus, a tenant must prove, not simply that other landlords might have given consent, but that a reasonable man would have done so in the particular circumstances[28].

There are some indications that, though generally a landlord need consider only their own interests, a refusal to consent may be unreasonable if the consequent detriment to the tenant is disproportionate to the benefit gained by the landlord[29]. It is not clear how these principles would be applied in a case where a disabled tenant required their landlord's consent to alterations which would facilitate access. Whilst there is a possibility that the courts would develop the last mentioned principle, based on disproportionate benefit and detriment, in favour of disabled tenants in these circumstances, it is by no means certain that this would occur. Even if it were to occur, comparisons between aesthetic, sentimental or even financial benefits to landlords and access detriments to tenants would be like comparing apples and Thursdays. It is not difficult to imagine a judge with a keen aesthetic sense[30] deciding in favour of a landlord even though this would require a tenant to find alternative accommodation.

As the law currently stands, there is no specific direction as to the weight to be given to securing access in housing for people with impairments as compared with the property interests of others. Nor would the Disability Rights Commission - or anyone else - have the ability to produce a statutory Code for guidance.

Decisions in other areas of land law suggest that very little weight will be attached to the desirability of facilitating access for disabled people and that they will be easily overridden. In Drury v McGarvie[31], for instance, it was held that badly constructed gates did not amount to an obstruction of a disabled person's right of way across farmland to their home because they would not have constituted a 'material inconvenience' for a 'person of average strength and agility' or 'the ordinary, able-bodied adult'

Amending the DDA along the lines recommended by the DRTF would retain the use of a reasonableness test. It would, however, draw attention to the importance of facilitating access for disabled occupiers. Guidance as to the weight to be attached to this consideration as against contrary ones could be provided in the Code of Practice which already exists in relation to Part III of the DDA.

c. Role of DRC

Other advantages, the value of which should not be underestimated, would result from bringing the issue of alterations to premises by tenants into the realms of anti-discrimination law. It would enable disabled tenants to call on the support of the Disability Rights Commission (DRC) in connection with proceedings against their landlords - such assistance being restricted to cases brought under the DDA[32].

It would entitle disabled tenants, in appropriate cases, to compensation for injury to feelings on the same basis as victims of other forms of disability discrimination[33].

It would facilitate a coherent information campaign by the DRC aimed both at housing advisers, landlords and property management agents and disabled people, about the rights of disabled people in relation to housing

d. Limited coverage

Access to a dwelling

In many case the disabled occupier needs alterations to the exterior of the building (such as the installation of a grab rail) or to its approach (such as the installation of a ramp or additional lighting). Such areas do not constitute part of the 'dwelling-house' leased to them.

The LTA 1927 will not apply, as it only applies where the proposed improvements are to the premises comprised in the lease. Thus, in Tideway Investment and Property Holdings v Wellwood[34], it was held not to apply where the installation of hot water systems necessarily entailed trespassing on property retained by the landlord.

Currently, the right to make alterations in many leases will be confined to the actual premises leased. This will not assist a disabled tenant confronted by physical barriers in the approach to the property where that is not included in the lease [35]. A totally accessible flat may be of little use to a person who needs to negotiate a short flight of steps in order to enter it.

Privately owned flats

Many of the calls on this subject to the DRC Helpline (see below for recent examples) involve owners of private flats who have not been permitted to make alteration to the areas of a building outside their occupation, owned by a freeholder, over which they have a right of access. Such situations will be excluded both for the reasons outlined in the paragraph above and because the Bill only applies to the property occupied under a lease - not privately owned premises.

It is vital that these gaps are dealt with - and remedies provided to the often desperate people living with these problems - in some cases "prisoners in their own homes".

Conclusion

Failure to amend the DDA along the lines suggested by the Disability Rights Task Force would perpetuate inconsistency within the Act itself. Under it landlords are already prevented from unreasonably withholding consent to physical alterations designed to facilitate access by disabled people when their tenants are employers[36], service providers[37] or educational establishments[38]. Why not when their tenant is a disabled person?

The result of a continued exclusion of this type of case from the scope of anti-discrimination legislation is a law which appears to undervalue the importance of accessible housing. It is appropriate to end with the quote which begins the relevant chapter of the report of the Disability Rights Task Force[39]:

"Adaptations to housing are a matter of equal opportunities in the most basic aspects of human life. In a well adapted house, a disabled person can move about, cook, or go into the garden, turn on lights, have a shower or bath or put a child to bed - when and how they want to, with minimum help from other people. Without adaptations, these people may be condemned to isolation, frustration."

Examples from DRC Helpline

The queries to the Helpline below would not be assisted by the Disability Bill or the Landlord and Tenants Act 1927 as they all require changes to be made to the "common part" of blocks of flats Most of the calls are from owner occupiers who will not be covered by any of the Disability Bills provisions .

1. Caller has a client who lives in a block of flats. He owns the flat but it is on a leasehold basis. He is a wheelchair user and would like a ramp to be put in. Caller would like to know if the company who owns the building could refuse this request.

2. Caller was phoning on behalf of her boyfriend's father who following an accident is now paralysed. He is still in rehabilitation and is preparing to come home. He lives in a block of flats and he along with the other residents own their flats. He has put forward proposals for a lift to be installed to enable him to gain access to his flat but two members of the management board have refused it. There is going to be a ballot for all the residents in the block of flats concerned and the surrounding blocks to decide whether the permission should be granted. The two member of the board that are refusing to give permission are saying that the lift will restrict access and bring down the property values. Some residents who live in the block of flats next to the proposed flat are not happy because they say it will look like an old people's home!

3. The caller had a general query with regards to letting and selling of land and property. He stated that he resides in a block of flats that are approximately 35 years old; these flats are privately owned and are governed by a board of directors made up of the residents in the block. He stated that they have one resident that has recently become disabled and is currently in hospital, when he comes out of hospital he will require a stair lift the caller stated that if 75% of the residents approve to this they will be able to install this, the caller feels that they will not approve and wanted to know if the DDA could assist in this matter.

4. Caller lives in a housing association flat and there is a communal stairway for the residents who live on the upper floors. Caller has severe arthritis that has affected her mobility and she finds climbing up and down the stairs to get to her flat difficult. Caller has had a quote for a stair lift to be fitted and has consulted a fire officer who has said confirmed that it would not be a fire hazard. Caller is unable to go ahead with the installation of the stair lift because one of her neighbours has complained about the proposal claiming that it would be a fire hazard. Caller wanted to know whether the Housing Association should allow the stair lift to be fitted.

5. Caller contacted on behalf of her father who lives in sheltered accommodation. He has chronic emphysema and is increasingly housebound, and unable to climb stairs. He has asked for a stairlift and offered to pay for the installation and maintenance of it. His neighbour has objected and the management committee have said that they cannot overrule the objection, and that all four people in the block must agree.

6. Caller wanted to know whether a Housing Association is breaking the law by removing an accessible entrance to a block of flats because of complaints by the tenants that they stayed open too long. Then replace them in another area with an automatic closing gate but with steps making it difficult for those using scooters to access. When the Housing Association was challenged on this, their response was to say that they do not house severely disabled people.

7. Caller asked on behalf of a lady who is living in a flat. There is a flight of steps from the main building to the street and as a wheelchair user the lady is unable to use the steps, which means she is completely house bound. He asked if there is anything which can be done to make the landlord put in a ramp.

How might a DDA right to make adaptations operate?

The landlord (or person controlling the property in the case of privately owned premises) would not be able to unreasonably refuse consent for adaptations. When the Government originally accepted this Taskforce recommendation it stated that it would consult on what factors should be taken into account when determining the reasonableness of the consent, and what conditions might reasonably be imposed in relation to that consent. Such a consultation would be an essential step in issuing guidance - whether through regulations or in the statutory Code - as to reasonableness. In relation to the issue of whether landlords of commercial premises can reasonably withhold consent to service providers adjustments under s 27 DDA the statutory Code of Practice on Rights of Access Goods, Facilities and Services gives the following guidance. "Whether withholding consent will be reasonable or not will depend on the specific circumstances. For example, if a particular adjustment is likely to result in a substantial permanent reduction in the value of the lessor's interest in the premises, the lessor is likely to be acting reasonably in withholding consent. The lessor is also likely to be acting reasonably if he withholds consent because an adjustment would cause significant disruption or inconvenience to other tenants (for example, where the premises consist of multiple adjoining units). A trivial or arbitrary reason would almost certainly be unreasonable. Many reasonable adjustments to premises will not harm the lessor's interests and so it would generally be unreasonable to withhold consent for them.

The 2001 Disability Discrimination (Providers of Services) (Adjustment of Premises) Regulations provide that a lessor may reasonably require a service provider to meet the following conditions:

obtains any necessary planning permission and other statutory consents;

carries out the work in accordance with any plans and specifications approved by the lessor;

allows the lessor a reasonable opportunity to inspect the work (whether before or after it is completed);

reimburses the lessor's reasonable costs incurred in connection with the giving of consent; or

obtains the consent of another person required under a binding obligation or superior lease.

These provisions are also likely to apply in respect of residential property. In many situations it will also be reasonable for a landlord (or property manager) to make consent subject to re-instatement of the property when the disabled occupant leaves.

Background - tenure types

A substantially lower proportion of disabled people live in the owner occupied sector than is found for the total household population - 62% compared to 73% from the Survey of English Housing (SEH)2001/2. SEH shows that 33% of disabled people in England (3.5million) are 'social renters'; of this total 2.5 million (73% ) are council tenants and 954,000 (27%) are RSL tenants.[40] Approximately 600 000 disabled people are private renters. 120 000 of these require specially adapted accommodation, of which 58% reported that their accommodation was suitable.

18 This subsection reads as follows:

"In all leases whether made before or after the commencement of this Act containing a covenant condition or agreement against the making of improvements without licence or consent, such covenant condition or agreement shall be deemed, not withstanding any express provision to the contrary, to be subject to a proviso that such licence or consent is not to be unreasonably withheld; but this proviso does not preclude the right to require as a condition of such licence or consent the payment of a reasonable sum in respect of any damage to or diminution in the value of the premises or any neighbouring premises belonging to the landlord, and of any legal or other expenses properly incurred in connection with such licence or consent nor, in the case of an improvement which does not add to the letting value of the holding, does it preclude the right to require as a condition of such licence or consent, where such a requirement would be reasonable, an undertaking on the part of the tenant to reinstate the premises in the condition in which they were before the improvement was executed."

Back

19 For further discussion, see Woodfall (supra, note 3) para 11.254. Back

20 Supra, note 3, para 11.262. Back

21 [1938] Ch 883 at 907 per Slesser LJ and 911 per McKinnan LJ. Back

22 Woodfall (supra, note 3) para 11.262. Back

23 [2001] 3 WLR 2180 at 2182-3. For further discussion, see Woodfall (supra, note 3) paras 11.140 and 11.141. Back

24 International Drilling Fluids v Louisville Investments (Uxbridge) [1986] Ch 513 at 520 per Balcombe LJ and Houlder Bros v Gibbs [1925] Ch 575 at 587 per Sargant LJ. Back

25 Bickel v Duke of Westminster [1977] QB 517 at 524 per Denning MR. Back

26 Ashworth Frazer v Gloucester CC [2001] 3 WLR 2180 at 2183. See also ibid at 2201 where Lord Rodger observed that: "Seeing that the circumstances are infinitely various, it is impossible to formulate strict rules as to how the landlord should exercise his right of refusal". Back

27 Pimms Ltd v Tallow Chandlers Co [1964] 2 QB 547 at 564 per Danckwerts LJ. Back

28 Shanly v Ward [1913] 29 TLR 714. Back

29 Shepherd v Hong Kong and Shanghai Banking Corp [1872] 20 WR 459, Houlder Bros v Gibbs [1925] Ch 575, Leeward Securities v Lilly Heath Properties [1984] 2 EGLR 54 and Viscount Tredegar v Harwood [1929] AC 72. Back