Case No: B2/2006/0083

Neutral Citation Number: [2006] EWCA Civ 1719
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SWANSEA COUNTY COURT
HHJ JUDGE WYN WILLIAMS Q.C.
Ref: 4SA03701
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 14th December 2006
Before:

LORD JUSTICE AULD
LORD JUSTICE SCOTT BAKER
and
LORD JUSTICE RICHARDS
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Between:

	RICHMOND COURT (SWANSEA) LTD	Defendants/ Appellants	
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	DOROTHY WILLIAMS	Claimant/ Respondent	

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Michael Daiches (instructed by Morgan LaRoche) for the Appellants
Robert Latham (instructed by Salter Kelly) for the Respondent

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Judgment
Lord Justice Scott Baker : 
1.	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.” 
2.	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.
3.	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. 
4.	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.”
5.	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).
6.	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. 
7.	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. 
8.	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.
9.	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. 
10.	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. 
11.	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. 
12.	It is not disputed that the defendants are “managing premises.” Nor is it disputed that Mrs Williams is “a disabled person occupying those premises.”
13.	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. 
14.	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.
15.	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).
16.	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. By section 53A(8A), if it appears to a court, tribunal or other body hearing proceedings under Part II, III or IV of the Act that a provision is relevant it is required to take it into account. We were provided with a copy of the code of practice dated 27 May 2002 which is the one that is relevant to this case. At paragraph 9.4 in answer to the question posed by the code: “Is there a duty to make adjustments in relation to selling, letting or managing premises?” the code responds:
“There is no legal duty to make reasonable adjustments to premises which are sold, let or managed. Although there is nothing in the Act to prohibit positive action in favour of disabled people, those who are selling, letting or managing premises do not have to make adjustments to make those premises more suitable for disabled people…….”
17.	The present case is concerned with the 1995 Act. There has been much debate about whether the managers of premises should be under a positive duty to disabled people in respect of the common parts, for example to enable a disabled person to install a stair-lift. No such duty has been imposed by the Disability Discrimination Act 2005 (“the 2005 Act”) despite the recommendation of many that it should have been. Indeed, amendments to that effect were tabled, during the passage of both the Housing Act 2004 and the 2005 Act through Parliament, but failed. The difficulty is that there are other interests and considerations for example health and safety issues.
18.	We were provided with a copy of the report of the Review Group on Common Parts dated 23 December 2005. It was set up in order to review the legal position in relation to the alterations to the common parts of let residential premises and to make recommendations to improve access for disabled people. In its executive summary it records that, while legislation provides some assistance to tenants and lessees who seek their landlord’s consent to the making of disability related adjustments to their home, it does not make express provision in respect of adjustments to any common parts of the building (such as the entrance and stairs). One of its two main recommendations is that the government should establish, through consultation, whether legislation is required on its proposal to “require the landlord where reasonable to make an adjustment to physical features of the common parts of residential let premises to improve access for a disabled tenant lessee or occupier when requested to do so by the tenant or lessee and at their expense (unless the landlord chooses to pay).”
19.	It seems to me that all this goes to illustrate that sections 22 to 24 of the 1995 Act treat the managers of premises differently from others who are caught by different provisions in the Act and on whom are imposed additional positive obligations. It underlines the distinction between sections 22 to 24 and other provisions in the Act.
The judge’s approach.
20.	The judge rightly observed that the meaning of discrimination in section 24 of the 1995 Act lies at the heart of this case. Both counsel agreed before the judge that it was necessary to identify the appropriate comparator in order to ascertain whether in truth there had been discrimination. Both counsel agreed, and that agreement has been maintained before us, that the appropriate comparator in the present case is other lessees living in the same building without Mrs Williams’ disability. Had the position been that there were no other lessees of the building and Mrs Williams was the sole lessee then it seems to me the comparator would have been a putative lessee.
21.	The judge’s reasoning was as follows. The defendants were the managers of the premises and the staircase was a facility within the meaning of section 22(3)(a) and (b). The refusal to permit the installation of a chair-lift was a decision; it was a positive act and not an omission. It was a decision relating to whether Mrs Williams should be permitted to use a facility (the staircase) in a particular way i.e. on foot only and not by stair-lift. He said the decision was detrimental to Mrs Williams and it was difficult to envisage any detriment or disadvantage to a property owner that was more detrimental or disadvantageous. If the defendants acted in a discriminating manner by subjecting Mrs Williams to this detriment the defendants acted unlawfully, subject to proof of justification which is no longer an issue. 
22.	The next step in his reasoning was this. A decision to refuse permission would have no detrimental effect on a lessee without Mrs Williams’ disability, because he or she would be able to obtain access to and egress from his or her flat without any difficulty. Accordingly the defendants have treated Mrs Williams less favourably than they would treat others to whom her disabilities do not apply. 
23.	The judge concluded by saying it was not that the defendants had made a decision which restricted in some way the right granted to Mrs Williams in her lease; it was that the defendants had refused to permit the use of a facility over which Mrs Williams has a right of way in a manner which would not be possible without their permission. The judge felt that what has come to be known as the “guide-dog example” was an apt analogy.
Discussion 
24.	 The “guide-dog example” was first mentioned by the Minister when presenting the Disability Discrimination Bill to Parliament. It was given in the context not of premises but of provision of services. The example was of a café owner who made it a rule that no person would be admitted to his café if accompanied by a dog. Since the reason why a blind person would have a dog was as a guide-dog, a refusal to allow entry would be discriminatory since the reason why he had the dog related to his disability. The comparator in that case was other people without dogs. The guide-dog example was referred to by Mummery L.J. in Clark v Novacold Limited [1999] ICR 951, 964 and by Brooke L.J. in Manchester City Council v Romano [2005] 1WLR 2775, 2790.
25.	Mr Daiches, for the defendants, submits that the guide-dog example is not an apt analogy for the present case. The café owner’s treatment of the blind man was indeed different to his treatment of the comparators for he refused entry to the disabled person and granted entry to the comparators. In the present case the defendants have treated Mrs Williams in the same way as they would treat the comparator. All lessees would be refused permission to install a stair-lift regardless of any disability. In my judgment there is considerable force in that submission. 
26.	There is no doubt that doing nothing as regards A, who is disabled, can amount to discrimination if compared to doing something as against B, who is not. Also, it is possible for the more favourable treatment to be by omission. But Mr Daiches makes the point that treating A less favourably involves treating B more favourably.
27.	It seems to me that the starting point is to look and see why Mrs Williams was treated in the way that she was. Once that is established the next step is to look at the comparators and see why they were treated differently. Thus, the first question is why did the defendants refuse consent for the stair-lift? The treatment complained of is the refusal to give consent. Why did the defendants refuse consent? Various reasons have been given by the defendants but none relates to Mrs Williams’ disability. These include that the other tenants voted against the proposal, aesthetics, cost of repair and inconvenience to the residents as a whole and that the code of practice makes it clear that they are not under any duty to make “reasonable adjustments” to the premises. Finally, in paragraph 32 of the amended defence, it was contended that if the defendants treated Mrs Williams less favourably than others the treatment was justified because the noise of the stair-lift was likely to exacerbate the migraine and endanger the health of the occupier of 38 Richmond Court. As I have said, however, justification is no longer an issue on the appeal. No issue has been taken with the reasons pleaded. 
28.	Thus the defendants’ position was that they would not permit anyone to install a stair-lift in the common parts and they were treating Mrs Williams no differently from anyone else who might be minded to make a similar application. Their reasons had nothing to do with Mrs Williams’ disability; they were much more broadly based. 
29.	It should, I think, be emphasised that section 24 does not make specific reference to comparators. What it says is that a person discriminates if, for a reason related to his disability, he treats or would treat others, to whom that reason does not apply, less favourably. The starting point therefore, as I see it, is to look for the reason that the defendants treated Mrs Williams as they did i.e. refused consent for the stair-lift, and see whether that reason relates to her disability. The reason why Mrs Williams wanted the stair-lift was plainly because of her disability but that is not the critical factor for the purposes of section 24. What is critical is why the defendants refused consent and, on the pleaded case, that was manifestly not because she was disabled. Mrs Williams wishes to install a stair-lift; others do not. The defendants do not want anyone to install a stair-lift. Everyone is in the same position as they were before. Mrs Williams has not been treated unequally or less favourably than anyone else. It is nature that has left her worse off than the other tenants.
30.	The judge said he was bound to follow Romano in which this court had followed the reasoning of Mummery L.J. in Clark v Novacold Limited.  But it seems to me that both these cases are distinguishable on their facts from the present case. In Clark v Novacold the court was concerned with a case in the employment field. The applicant was absent from work for a long period due to a back injury received at work. His medical advisors could not say when it would be possible for him to return to work and he was dismissed. His employer argued that any employee absent for such a long period for a non disablement reason would be treated no differently. But the critical fact, and the reason for the applicant’s absence, was his disability and that reason did not apply to absentees who were not disabled. Accordingly, the employer had to justify his action. 
Mummery L.J. said at p.963:
“The definition of discrimination in the 1995 Act does not contain an express provision requiring a comparison of the cases of different persons in the same, or not materially different, circumstances. The statutory focus is narrower: it is on the ‘reason’ for the treatment of the disabled employee and the comparison to be made is with the treatment of ‘others to whom that reason does not or would not apply.’ The ‘others’ with whom comparison is to be made are not specifically required to be in the same, or not materially different, circumstances: they only have to be ‘persons to whom that reason does not or would not apply.’”
31.	In Romano a local authority landlord sought orders for possession against two tenants each of whom was suffering from a recognised mental illness. Each had been guilty of antisocial behaviour, the reason for which was their mental illness. The case was complicated because it concerned the interrelationship of the 1995 Act and the Housing Act 1985. Brooke L.J. said at paragraph 51 that if the reason why the tenants were evicted related to their disabilities it would be unlawful (because it did not apply to the other tenants) unless the council could justify its conduct under s.24(2). Thus, in that case the section was engaged because the reason was assumed not to apply to the comparators. 
32.	One of the points made in argument by Mr Daiches was that the judge at paragraph 31 of his judgment thought that in the context of less favourable treatment within the meaning of subsection 24(1)(a) there was a relevant distinction between (i) a decision refusing permission to a disabled occupier to make alterations to the common parts at the disabled occupier’s expense and (ii) a decision refusing to make alterations at the defendants’ expense. He submits that in logic there is no such distinction. The latter decision has precisely the same detrimental effect on the disabled occupier as the former. Both decisions result in the disabled occupier (by reason of her disability) continuing to be unable to enjoy the relevant benefits and facilities to the same extent as the able bodied occupiers. Accordingly the judge’s decision has the effect of imposing a positive duty on a manager of premises to do whatever is necessary (not just whatever is reasonable) to ensure that a disabled occupier is able to enjoy the relevant benefits or facilities to the same extent as the relevant comparators, save only where the managers can satisfy the limited justification conditions in subsections 24(2) and (3). 
33.	When this point was put to Mr Latham in argument he really had no answer to it. If Mr Latham’s construction is right the obligation on the defendants goes much further than the obligation to make reasonable adjustments under Part II, the extent of which is so carefully set out in section 18B. I cannot believe Parliament intended that to be the case. Objective reasonableness is not the test of justification in section 24 and to my mind the reason is clear; it is because the discriminator does not have to justify failure to comply with a positive duty. 
34.	In my judgment the judge fell into error in not first looking to see why Mrs Williams was treated in the way that she was. Only when that has been established can one look to comparators to see if they were treated any differently. What the judge should have done was to carry out a two stage exercise. First he should have identified the relevant act or omission on the part of the defendants and second he should have identified the relevant act or omission, if any, towards the relevant comparators.
35.	Instead of carrying out the two-stage exercise the judge carried out the first stage only. He identified the refusal of permission by the defendants as constituting the relevant treatment towards Mrs Williams, but he did not go on to identify what, if any, acts or omissions on the part of the defendants constituted more favourable treatment towards the comparators. He did not make any finding about how the defendants treated them. Thus, submits Mr Daiches, he failed to ask himself the critical question whether they treated Mrs Williams any differently from the way they treated, or would have treated, the relevant comparators. 
36.	Mr Daiches points out that the stair-lift is not part of the easement. Mrs Williams has a right to go up and down the stairs to get in and out of her premises. The provision in her lease gives her nothing more. The defendants did not prevent her from doing that. Mrs Williams needs consent from the defendants for an un-covenanted benefit. She did not get it, but neither did nor would any of the other tenants. 
37.	During the course of argument we were referred to an example in the code of practice at paragraph 9.37 which is in these terms:
“A disabled tenant with a mobility impairment is prevented by the management agency of a block of flats from parking in front of the main entrance to the block. The agency requires him to park in the car park at the back of the block. Although this causes the disabled tenant inconvenience and difficulty, the reason for the agency’s decision is that there is insufficient space at the front of the building and the disabled tenant’s car frequently causes an obstruction to other tenants. The decision is likely to be justified.”
38.	Although the court is required to take into account provisions of the code that it thinks are relevant, I do not consider that an example in the code necessarily informs the court as to the true construction of the Act. It is said that the decision in the example is likely to be justified. For my part I am un-persuaded that the point of justification is reached as I do not think less favourable treatment is shown. The author of the example may have been looking at the facts of it solely from the point of view of justification. 
Conclusion
39.	In my judgment the underlying complaint in this case is that the defendants have failed to put Mrs Williams in a better position than that to which she is entitled by her underlease. This is in effect a complaint that they have failed to take positive action i.e. give consent to installation of the stair-lift. They have not, in my judgment, treated her less favourably then they have treated or would treat anybody else within the meaning of section 24(1) of the 1995 Act. It is of critical significance that the managers of premises are not under any positive obligation to make adjustments or to agree to tenants making adjustments to the common parts of the premises so as to make them more suitable for disabled people. This is in sharp distinction to other provisions in the 1995 Act where positive obligations are imposed. Whilst a change of the law in this regard has been under active consideration, it has not yet been brought about. Accordingly, with some regret, I am driven to the conclusion that Mrs Williams’ claim must fail. The judge was wrong and I would allow the appeal on the preliminary issue and grant summary judgment to the defendants. Mrs Williams cannot succeed on the pleaded case.
Lord Justice Richards:
40.	I agree that the appeal should be allowed for the reasons given by Scott Baker LJ.  Since we are differing from both judges below, I add a few words of my own.
41.	It seems to me that section 24(1) of the 1995 Act requires one (i) to identify the treatment of the disabled person that is alleged to constitute discrimination, (ii) to identify the reason for that treatment, (iii) to determine whether the reason relates to the disabled person’s disability, (iv) to identify the comparators, namely persons to whom the reason does not or would not apply, and (v) to determine whether the treatment of the disabled person is less favourable than the treatment that is or would be accorded to the comparators.  That is the approach laid down in Clark v Novacold Ltd [1999] ICR 951 and in Manchester City Council v Romano [2005] 1 WLR 2775.
42.	In this case, although it has been expressed in different ways for forensic effect, the treatment alleged to constitute discrimination is the defendant’s refusal of consent for installation of a stair-lift.
43.	The defendant’s pleaded reasons for that treatment, which the claimant has not sought to challenge, are referred to in para 27 of Scott Baker LJ’s judgment.  They include such matters as aesthetics, cost of repair, inconvenience to residents as a whole, and the effect of noise on the health of one of the residents.  (I would note that the reasons for the treatment in issue are different from the reasons for the request for a stair-lift, upon which Mr Latham, in my view erroneously, sought to place reliance.)
44.	I agree with Scott Baker LJ that none of those reasons relates to the claimant’s disability.  That is sufficient in itself to dispose of the claimant’s case.
45.	If one does go on to try to identify a group of comparators by reference to those reasons, the exercise breaks down, since there does not appear to be anyone to whom the reasons do not or would not apply:  they are reasons of entirely general application.  That is a further clear indicator of the absence of discrimination.
46.	Let it be assumed, however, that the comparators can be identified as able-bodied lessees of the same block of flats.  They were the comparators agreed upon by the parties and that was the basis on which the claimant’s case was advanced.  On that basis, the treatment of the claimant cannot be said to be less favourable than the treatment that would be accorded to the comparators, since it is clear from the evidence that all tenants would be treated in exactly the same way:  the defendant would not give consent to any of them for the installation of a stair-lift.
47.	Thus everything points to the same conclusion, that there is no discrimination within the terms of section 24(1).  The guide-dog example and the circumstances that were held to give rise to discrimination in Novacold and Romano are readily distinguishable.   
48.	If the claimant’s case were accepted, it would have the effect, as Scott Baker LJ has indicated, of imposing a positive duty on persons managing premises of this kind.  The 1995 Act, however, imposes no such duty on them, by contrast with other contexts where a positive duty is imposed in clear terms and its scope is spelled out in some detail.  If a duty is to be imposed (and the circumstances of this case highlight the case for such a duty), it must be done by specific legislative provision defining the limits of the duty, not by distorting the test in the existing section 24(1).
Lord Justice Auld:
49.	I agree that the appeal should be allowed and that there should be summary judgment for the Defendants for the reasons given by my Lords.