The case is Thomas-Ashley v Drum Housing Association Ltd and is reported in some detail on the Nearly Legal blog.
The dog in question is a Jack Russell/Border Collie cross, called Alfie. So far as I can see, the essential elements of the story are as follows:
- Ms Thomas-Ashley suffered from Bipolar Mood Disorder (a recognised disability) and had previously been admitted to hospital for this
- She was separated from her husband who lived in the former matrimonial home with the children of the family
- In June 2006 she took over the tenancy of a one bedroom flat from the Drum Housing Association
- In October 2007 her former husband said that her daughters dog, Alfie, could no longer stay with them.
- Ms Thomas-Ashley asked permission from her landlord to keep the dog at the property
- This was refused as there was a no pets policy. Her landlord was a lessee and the head lease also did not permit pets. There was a list of dogs for which permission could be granted, but this did not include Jack Russell/Border Collie cross dogs.
- The dog moved in anyway.
- Ms Thomas-Ashley found that caring for the dog dramatically improved her mental condition,
- However the dog disturbed neighbours by barking and on 4 February 2008 the head lessors agent wrote and asked her to re-house it.
- Ms Thomas-Ashley took no notice and the dog remained
- A section 21 notice was served and proceedings for possession issued in due course. An order for possession was made in the first instance.
- Ms Thomas-Ashley appealed under the DDA95.
Section 24A introduced into the 1995 Act an obligation on the controller of premises (which the respondents undoubtedly are) not to discriminate against a disabled person to whom the premises are let. Again it is indisputable that the appellant is such a person. Discrimination is defined, for these purposes, as a failure to comply with the duty imposed under section 24D when the respondents cannot show their failure was justifiedThe reasons why the appeal was dismissed were basically as follows:
- “when she moved in she did not need a dog in order to live at the premises”.
- “in reality it was companionship of the dog that she enjoyed, rather than it being a physically necessity (for example as it would be with a guide dog for a blind person)”
- The head lessors had refused to allow permission and had threatened to forfeit the lease if Alfie continued living in the premises
- This was because Alfie was not one of their permitted breeds of dogs and his persistent barking was disturbing the neighbours
- It was not reasonable to expect the landlords to allow the dog when this would result in their lease being forfeited
In Lewisham LBC v Malcolm  [reported by us here] Lord Neuberger of Abbotsbury pointed out at paragraph 148 that there was much to be said as a matter of general policy for the view that the court should lean in favour of an interpretation which assists the beneficiaries of anti-discrimination legislation but that the legitimate interests of those whose common law rights are affected by the legislation have also to be borne in mind.However, landlords take note. If it had been a proper guide dog, and if the landlord had not been in danger of having his lease forfeited, the decision could well have been different.
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 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. The “no animals” provision was in the appellant’s tenancy agreement and the head lease for a purpose.
[The housing associations barrister's] argument means that the appellant’s Bipolar disorder effectively trumps her contractual agreement with the respondents and the respondents’ agreement with the head lessor as well as the interests of the other occupiers of Itchen Court. I cannot accept that on the facts found by the judge this is so. Accordingly I would dismiss the appeal.