Animals – Housing – Human rights – Nuisance

Dee Thomas-Ashley v Drum Housing Association Ltd: CA (Civ Div) (Sir Andrew Morritt (chancellor), Lord Justice Thomas, Sir Scott Baker): 17 March 2010

The appellant (T) appealed against a possession order.

T and her husband had separated and there had been divorce proceedings, during which T became mentally unwell. She had been admitted to hospital and diagnosed with bipolar mood disorder. When she was discharged from hospital her husband was living in the family home with their children. The local authority accepted that it had a duty to house T. She had been offered and accepted accommodation in a one-bedroom flat. The respondent housing association (D) was her landlord. D’s head lease of the premises provided that every leaseholder should not permit anything to be done which was, or might tend to become, a nuisance or disturbance to neighbours and was not to allow any pets or animals to be kept in the flat without permission. T’s assured shorthold tenancy agreement with D contained similar provisions. After T had lived in the flat for 15 months, her former husband said that her daughter’s dog could no longer stay in the former matrimonial home. T asked for permission to keep the dog in the flat but that was refused. She nevertheless kept the dog without permission. The head lessor wrote to D asking for the dog to be removed. The dog barked and was not the type of dog for which the head lessor would give consent. D took possession proceedings and a possession order was made, despite evidence that keeping the dog was beneficial to T’s mental health. T submitted that she had a disability and the presence of the dog was critical to her health; she could not enjoy the premises without him and D was in breach of duty under section 24A of the Disability Discrimination Act 1995 in maintaining the ban on dogs in her tenancy agreement; accordingly, the possession order should not have been made and should be set aside.

Held: (1) T did not overcome the first hurdle in section 24D of the 1995 act. The first question under that section was whether a term of T’s tenancy agreement, namely the prohibition on keeping animals in the premises, made it impossible or unreasonably difficult for her to enjoy the premises. The duty owed under section 24D was to T rather than to disabled persons generally, as, for example, the duty under section 49A. The instant case was not concerned with the section 49A duty. The problem T faced was that when she moved in she did not need a dog in order to live at the premises. The dog was not a guide dog. As the judge had held, if T did not have her disability she would still find it impossible or unreasonably difficult to enjoy the premises without the dog because in reality it was the enjoyment of companionship of the dog rather than enjoyment of the premises which was primary. Therefore the ‘no animals’ term did not make it impossible or unreasonably difficult for her to enjoy the premises. The right to enjoy the premises was dictated by the terms of the lease itself. That right could not exceed what the letting entitled the tenant to do.

(2) T also faced the insurmountable problem that changing the terms of her tenancy would have provoked forfeiture of D’s lease by the head lessor. D could not delete or modify the ‘no animals’ rule in T’s tenancy agreement in the face of a refusal by the head lessor to countenance the presence of the dog. It would not be reasonable to expect D to take any step which might lead to forfeiture. T failed to identify the reasonable steps D should have taken but failed to take.

Appeal dismissed.

Joshua Dubin (instructed by Swain & Co) for the appellant; Philip Glen (instructed by Coffin Mew LLP) for the respondent.