Williams v Richmond Court (Swansea) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker,Lord Justice Richards,Lord Justice Auld |
| Judgment Date | 14 December 2006 |
| Neutral Citation | [2006] EWCA Civ 1719 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2006/0083 |
| Date | 14 December 2006 |
[2006] EWCA Civ 1719
IN THE SUPREME COURT OF JUDICAT
COURT OF APPEAL (CIVIL DIVISI
ON APPEAL FROM THE SWANSEA COUNTY CO
HHJ JUDGE WYN WILLIAMS Q.C.
Ref: 4SA03701
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Auld
Lord Justice Scott Baker and
Lord Justice Richards
Case No: B2/2006/0083
Michael Daiches (instructed by Morgan LaRoche) for the Appellants
Robert Latham (instructed by Salter Kelly) for the Respondent
This matter was listed before the court on a renewed application for permission to appeal with appeal to follow if permission was granted. The court granted permission and the hearing proceeded as a full appeal against the decision of Judge Wyn Williams Q.C. in the Swansea County Court on 25 November 2005. On that occasion he dismissed an appeal from District Judge Evans who had refused the defendants' application for summary judgment because he thought the claim had a real prospect of success. He then went on to determine the matter as a preliminary issue as the designated trial judge. The preliminary issue was in the following terms namely whether the defendants' refusal of consent to the installation of a stair-lift (at the claimant's expense) constitutes "discrimination within section 22(3) of the Disability Discrimination Act 1995."
As court is concerned with a preliminary issue it is very regrettable, especially in view of the subject matter of the litigation, that although the proceedings were begun over two years ago the issue remains unresolved.
Facts.
Mrs Dorothy Williams, the claimant, is aged 81. Like many of her age she has mobility problems. She lives in a block of 16 residential flats at Richmond Court, Uplands, Swansea. Her flat is No. 8 and is on the third floor of the building. Its postal address is 44 Richmond Road. It is served by stairs. She can only get up and down the stairs with the greatest difficulty and needs a stair-lift. She is the lessee of her flat as the assignee of an underlease granted by the defendants to Mary Edmonston on 19 September 1966. Her landlords, who are the defendants, will not agree to the installation of the stair-lift, although it would be installed at no cost to them. The question is whether by refusing they are discriminating against Mrs Williams contrary to section 22(3) of the Disability Discrimination Act 1995 ("the 1995 Act") . The judge held that they are. Mr Daiches, who has appeared for the defendants, submits that they are not.
The freehold of Richmond Court is owned by an investment company, Hallrim Financial Investments Limited ("Hallrim") . On 14 July 1996 Hallrim granted a lease of the building to the defendants, Richmond Court (Swansea) Limited, for a period of 999 years from 25 March 1959. It contains a standard repairing covenant on the part of the lessee and a covenant that the lessee will not, without the written consent of the lessor "carry out or suffer to be carried out any building, engineering or other operations in on over or under the demised premises."
The defendants thereafter granted underleases to various occupants of the building including one of the claimant's flat to Mary Edmonston. In 1986 that underlease was assigned to Mrs Williams and she has lived in the flat for the past 20 years. The underlease contains an identical provision to the head lease prohibiting structural alterations without the written consent of the relevant lessor. Part 2 of the schedule grants Mrs Williams an easement to use the staircase for the purpose of obtaining access to and egress from the demised premises. She is obliged to contribute one sixteenth of the cost of the maintenance, decoration and repair of the common parts which include all staircases (schedule part 4) .
In December 2002 Mrs Williams was stuck in her bath for about five hours. On 11 February 2003 an occupational therapist employed by the local authority went to Richmond Court to assess whether she needed adaptations to her flat. He recommended to the director of housing that she did. The recommended work included provision of a shower and a stair-lift that was to go all the way up to her flat from the ground floor. It has been decided she is eligible for a disabled facilities grant. There is, however, a problem that is independent of this litigation. The council has refused building regulations consent for the installation of the stair-lift. This decision is currently under appeal to the Welsh Assembly. There is thus no certainty that Mrs Williams could install the stair-lift even if the defendants' appeal in the present case fails and the judge's decision stands.
Mrs Williams asked for the consent of Hallrim, which was forthcoming on 17 November 2004. Their consent was subject to conditions, one of which was that the defendants gave their approval. However, nothing turns on those conditions; Mrs Williams would offer the same conditions to the defendants were they prepared to give their consent, but they are not. The conditions are:
i) that the work is carried out to a good standard by reputable contractors;
ii) when she vacates the flat the stair-lift will be removed and the stair case and the flat reinstated to its current condition.
The sole issue on this appeal is whether the defendants have discriminated against Mrs Williams as a disabled person occupying her flat.
The structure of the Act.
The 1995 Act is divided into VIII parts. Section 1 in Part I provides a definition of disability which is applicable to all parts. Disability is dealt with differently in different fields. For example Part II covers employment and Part IV education; but this case is concerned with Part III which is headed: "Discrimination in other areas," and the particular sections that are relevant relate to "premises" and are sections 22 to 24.
Section 22(1) and (2) deal with a person disposing of premises and are of no relevance to the present case.
Section 22(3) provides;
"It is unlawful for a person managing any premises to discriminate against a person occupying those premises –
(a) in the way he permits the disabled person to make use of any benefit or facilities;
(b) by refusing or deliberating omitting to permit the disabled person to make use of any benefits or facilities; or
(c) by evicting the disabled person or subjecting him to any other detriment."
None of the remaining provisions of the section is relevant to the present appeal; nor is section 23.
Section 24(1) provides:
"For the purposes of section 22, a person ("A") discriminates against a disabled person if –
(a) for a reason which relates to the disabled person's disability, he treats him less favourably then he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment in question is justified."
The remainder of the section is concerned with justification which is no longer in issue on this appeal.
It is not disputed that the defendants are "managing premises." Nor is it disputed that Mrs Williams is "a disabled person occupying those premises."
Mr Daiches, for the defendants, submits that they have not discriminated against Mrs Williams as defined in section 24(1) (a) . They have done nothing to interfere with her right to use the stairs and obtain access to her flat; they have done nothing to her detriment. The highest that it can be put against them is that they have failed to confer upon her a benefit that is not covenanted in her lease. Her problem is caused by nature rather than any action on their part.
It is important to have in mind the scheme of the 1995 Act. Section 3A, in Part II covering employment, begins by defining discrimination in identical terms to section 24(1) (a) . But section 3A goes on in subsection (2) to provide that a person also discriminates for the purposes of Part II if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled. Other examples in the employment field are at sections 4A, 4E, 7B, 14, 14B, 14D and 18B. There thus exists in the employment field an additional form of discrimination by failing to comply with a positive duty. There is no similar additional positive duty on persons, such as the defendants, managing premises.
A similar additional duty to that found in the employment field is also to be found in other parts of the Act relating to education and public transport. There are also examples in Part III in sections 20 and 21. Section 21 goes into some detail into the obligations on providers of services to make appropriate adjustments. Where the 1995 Act lays down a positive duty its nature and ambit are clearly defined. For example section 18B sets out the various criteria that fall to be taken into account in deciding whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments in the employment field. Part III of the 1995 Act deals first in sections 19 to 21A with goods, facilities and services, before going on to deal in sections 22 to 24 with premises. It is, in my view, striking that Parliament has chosen to impose additional positive duties on those who run, for example, airports and public buildings (see e.g. section 19(3) ) , but not on those who dispose of or manage premises (see sections 22 to 24) .
Section 53A provides for the preparation and issue by the Disability Rights Commission of codes of practice giving guidance on how to avoid acts which are unlawful under Parts II, III and IV of the 1995 Act...
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