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Depressed woman cannot keep Jack Russell in flat

23 March 2010

A woman suffering from manic depression (bipolar mood disorder) cannot use the Disability Discrimination Act to keep a dog in her flat in breach of the tenancy agreement, the Court of Appeal has unanimously ruled.

Giving the leading judgment in Thomas-Ashley v Drum Housing Association [2010] EWCA Civ 265, Lord Justice Scott Baker said ‘Alfie’ was a Jack Russell/Border Collie cross who lived with Dee Thomas-Ashley in her one-bedroom flat in Hampshire.

Scott Baker LJ said Thomas-Ashley became mentally ill after a divorce. After she was discharged from hospital, her husband lived in the family home with their four children. Thomas-Ashley became homeless and was rehoused as a priority.

She signed a tenancy agreement for a ground-floor flat in June 2006, but it was only in October 2007 that Alfie, who belonged to her daughter, moved in after her ex-husband decided the dog could no longer live with the family.

Thomas-Ashley said in a statement that she considered Alfie to be “a member of my family” and was her “reason to get up every morning”.

Scott Baker LJ said there was expert evidence that “the companionship of the dog and the obligation to care for and exercise him promotes the mental health and well-being of the appellant to a marked degree”.

However, the judge at Southampton County Court made a finding of fact that “Alfie does bark”.

Lord Justice Scott Baker said that under section 24D of the Disability Discrimination Act 1995, it was unlawful for a controller of let premises to have a practice or procedure which made it “impossible or unreasonably difficult” for a disabled person to enjoy the premises.

He went on: “On the comparator issue the essential question is whether the ‘no animals’ clause would have had the same effect on the appellant but for her disability.

“The problem the appellant faces is that when she moved in she did not need a dog in order to live at the premises. Alfie is therefore different from a guide dog and cannot be compared to the equivalent to a medicine.”

On the issue of ‘reasonable steps’, Scott Baker LJ said the “insurmountable problem” for the appellant was that she admitted changing the terms of her lease would have led to forfeiture of the respondent’s lease from the head lessor.

“The judge found that the respondents could not delete or modify the ‘no animals’ clause in the appellant’s lease in the face of a refusal by the head lessor to countenance the presence of the dog.

“As the judge pointed out, due regard must be paid to all the circumstances; those circumstances include that the appellant was intent on continuing breach and the head lessor was plainly not going to overlook the respondents’ consequential breach of its lease.

“Other relevant circumstances are, in my view, that the appellant sought and was refused permission for Alfie but nevertheless went on to take the risk by having him.”

Scott Baker said it might have been possible to obtain the consent of the managing agents for keeping another breed of dog and the head lessor had provided a list of breeds which might be allowed, but it did not include a Jack Russell/Border Collie cross.

He said Alfie’s “persistent barking (a common propensity with Jack Russells)” was disturbing the neighbours.

“While 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.”

Scott Baker LJ dismissed the appeal. Sir Andrew Morritt, chancellor of the High Court and Lord Justice Thomas agreed.

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