Q & A

The question:
The lease contains a provision against lessees having pets in their property. A lessee asked for permission to have a guide dog and under the Disability Discrimination Act 1995 (DDA) we felt bound to agree, which we happily did. The block has a communal lounge for use by all the residents. Unfortunately, two other residents have now complained that they are being discriminated against because the lessee with the guide dog brings that dog into the communal lounge, which aggravates their asthma and they are implicitly denied use of the lounge. These lessees have provided medical evidence to show that they are severe asthma sufferers and that this is made worse by the dog.

Name withheld, housing association manager

The answer:
The third and final phase of the DDA came into force in October 2004, bringing with it far reaching implications for all service providers. However, from 4th December 2006, with the introduction of the Code of Practice on access of the Disability Rights Commission (DRC), all managers, landlords (including RMCs) are now subject to new duties regarding disabled persons who may require assistance or alterations to enjoy their homes. The new duties do impact on common parts of blocks of flats.

Definition of Disability: Under the legislation, disability is a physical or mental impairment that has a substantial or long term (more than 12 months) adverse effect on a person’s ability to carry out normal day-to-day activities. The definition includes HIV, cancer, mental illness and diabetes.

Forms of Discrimination: The Act identified two main forms of discrimination. The first is called the giving of “less favourable treatment and the second is the “failure to make reasonable adjustments” if requested by a disabled person.

“Less favourable treatment” arises if the disabled person would not have received that treatment or service but for his/ her disability, for example, a landlord refusing to allow a leaseholder with an attention deficit disorder to use the communal gardens/ lounge.

The “duty to make reasonable adjustments” arises only if an adjustment is requested. The duty is not anticipatory, however but once a request is made (which need not be in writing) the landlord/ manager is under a duty to take reasonable steps to address the matter complained of by the disabled person.

The DDA has identified three main types of adjustments which apply to residential premises:

• Auxiliary aids and services i.e. the replacement of taps/ door handles;
• Policies, procedures and practices; and
• Change to a term of a letting or lease.

It is this last adjustment that is of particular relevance to this scenario.

Duty to Change a Term of a Lease: If a term in a lease makes it unreasonably difficult or impossible for a disabled person to enjoy the flat or the benefits and facilities in a block, a duty to adjust may arise. Thus, in our scenario, we have a leaseholder with a sight impairment who wishes to have the assistance of a guide dog. While the terms of the lease states no pets are permitted, the leaseholder has nonetheless requested the landlord to waive the restriction.

As we can see from above, the landlord is under a duty to make a reasonable adjustment, which he has done in this case. Our particular scenario however becomes slightly more complicated as two other leaseholders in the same block have asthmatic problems and these are worsening due to the guide dog visiting the communal lounge.

The landlord should be aware of the duty to not give less favourable treatment to any of the leaseholders i.e. the refusal to permit the leaseholder to use to the communal lounge either because of the asthma or because of the guide dog.

It would appear that all three leaseholders are entitled to the same set of rights and in a situation such as this, the key would be compromise!