Case law: Residents' property management companies can be subject to disability discrimination rules requiring 'reasonable adjustments' for disabled tenants
Residents' property management companies and other service providers involved in property management should consider whether they need to make reasonable adjustments for disabled people, on an anticipatory basis, and avoid maintenance policies that indirectly discriminate against them - or risk a successful claim for disability discrimination.
This update was published in Legal Alert - July 2018
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A 64-year old disabled tenant with multiple sclerosis (MS) lived in a luxury block of flats owned and managed by a residents' management company. The company also owned a leisure club in the property, which had a heated swimming pool with a jacuzzi. The pool was the main reason the tenant bought his flat, swimming being the only sporting activity he could do with his MS. It also gave him greater independence and slowed the development of his MS.
Equality laws require that organisations providing goods, facilities or services to the public (or a section of it) are guilty of direct discrimination if they treat someone less favourably because of a disability, or because of something arising as a result of their disability.
They must also consider making 'reasonable adjustments' - for example, changing how they do things, making physical changes or providing equipment or help to disabled users - so the standard of service they offer to disabled people is as close as reasonably possible to the standard offered to non-disabled people. Whether an adjustment is reasonable depends on the circumstances.
This duty is 'anticipatory', so the organisation must not wait until a disabled person wants to use its services. It must anticipate what those with a range of disabilities (such as a visual, hearing, mobility or learning disability) might reasonably need.
In this case, disabled access to the club was difficult so the tenant sent the management company a number of emails asking for reasonable adjustments that would provide him with better and safer access. His requests were rejected.
He then pressed for changes recommended during a design and accessibility audit, which had been costed at £5,000 plus VAT. At the time, the club had just become entitled to a business rates rebate of £78,500 in overpaid business rates. However, no changes were made.
He brought a claim that the management company had failed to make reasonable adjustments that would enable him to take advantage of the facilities, as required under equality laws.
However, landlords are exempt from the duty to consider reasonable adjustments for disabled people. The management company therefore argued it was acting as the landlord in its dealings with the tenant. It also claimed it had acted reasonably – it operated a policy of only carrying out works that benefited everyone living in the flats, and it had surveyed other residents to ask whether it should comply with the disabled tenant's requests.
The Supreme Court ruled that the management company was acting as a service provider and not a landlord in these circumstances, so the equality laws did apply. It found that the management company had failed to consider or make reasonable adjustments. It also ruled that the management company's policy put disabled people at a particular disadvantage. This amounted to indirect discrimination.
The Supreme Court found that:
- the intransigence, negativity and "implacable attitude and approach" of the management company
- the fact the tenant had to initiate every step taken, with 'no meaningful assistance' from the company
- the fact the company created hurdles throughout the process
- the fact there was always an unreasonable delay in its decision-making, and
- the fact that it carried out a survey of all the residents which resulted in a consensus that no works should be carried out for him
meant the process was humiliating and demeaning for the tenant, and diminished his worth and self-esteem.
The Court therefore made what is believed to be the highest award ever by way of damages for injury to feelings - of £9,000.
- Service providers involved in property management should ensure they consider whether they are landlords and, if they are, make reasonable adjustments for disabled people - on an anticipatory basis - or risk a successful claim for disability discrimination, and avoid policies that indirectly discriminate against them
Case ref: Plummer v Royal Herbert Freehold Limited, County Court
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