A 64 year old London man with multiple sclerosis (MS) has won his claim of disability discrimination against a management company after it failed to make reasonable adjustments to enable him to use the leisure club at the block of flats in which he lives, and indirectly discriminated against him because of his disability.
Alongside ruling that the management company had breached its duty to make reasonable adjustments and applied a discriminatory practice in what works it undertook, the Court also awarded Mr Plummer £9,000 in damages for injury to feelings, thought to be the highest award of its kind for such a claim.
The landmark case fought by law firm Leigh Day, has found that the management company is a service provider, and not a landlord, and therefore has an anticipatory duty under the Equality Act 2010 to consider adjustments for people with disabilities. Landlords have no such duty.
James Plummer moved into his flat at the Royal Herbert Pavilions with his wife Simone in 2010. Their flat is one of 228 luxury apartments developed through the restoration of what used to be the Royal Herbert Hospital in Woolwich.
The properties are managed by the Royal Herbert Freehold Ltd, a company which acts as a management company to run the estate for the benefit of leaseholders. It also owns the Royal Herbert Leisure Club which sits within the block of flats and comprises a lounge bar, a heated swimming pool with a Jacuzzi, a well-equipped gym, a sauna, steam room and solarium.
The facilities at the club were the main reason Mr Plummer and his wife purchased their flat as the only type of physical activity Mr Plummer can do safely with his MS is swimming. However, due to his disability Mr Plummer found access to the club extremely difficult. Mr Plummer said that being able to swim would limit the progression of Mr Plummer’s MS, as well as provide him with independence.
According to evidence heard by District Judge Avent at the County Court in Central London, Mr and Mrs Plummer sent numerous emails starting in August 2011 to the management company requesting adaptions to allow Mr Plummer better, safer access to the leisure club to use its swimming pool. These requests were rejected.
In July 2014 Mr Plummer submitted costings for adaptations, which had been recommended by an inclusive design and accessibility audit. This audit estimated the cost of the adaptations at approximately £5,000 + VAT. During the same month the management company announced that Greenwich Council was refunding the club £78,500 in overpaid business rates.
In a wide-ranging judgment the Court found that Royal Herbert Freehold Ltd is a service provider, which means it has an anticipatory duty to consider the needs of disabled people in the use of the leisure club, which may include altering the physical features of that club. This is unlike the situation for a landlord, who has no such anticipatory duty and does not have to make alterations to physical features (which would include handrails or painting a wall). The government has recently confirmed that it will, however, look to enact legislation to remove this potential stumbling block for disabled people who require adjustments to the block of flats they live in. This judgment could have an impact for all disabled people living in accommodation with similar leisure facilities, managed by a management company or housing association who may find it difficult to deny their responsibilities by claiming merely to be a landlord (when they may, in fact, be providing a service via that leisure facility, as was found in this case).
The Court also found that Royal Herbert Freehold Ltd applied a policy of only undertaking works which benefitted all residents, which placed disabled people at a particular disadvantage, and the Claimant at that disadvantage. They were therefore found to have subjected the Claimant to indirect discrimination. The Court said:
“In large part, that is precisely the reason why the [Equality] Act and its predecessor legislation have been necessary. Those who are disabled have no choice in the matter and I am afraid that, in large part, the human condition is that those persons are labelled, stereotyped and discriminated against. Through a lack of understanding or empathy people can be inherently, and subconsciously, selfish and uncaring and do not conceive that their behaviour, in consequence, can have a detrimental effect.”
In relation to a survey sent by Royal Herbert Freehold Ltd to all residents asking for their opinion on Mr Plummer’s requests, whilst emphasising the disputed costs of the adjustments, the Court continued:
“The Residents Survey was a humiliating example of this because it simply reinforced existing prejudices and, in my view, should never have been circulated. It was used by the Board to justify its unreasonable stance in circumstances where it knew very well what the outcome was likely to be.”
In summing up the Court said:
“At every step of the way it has been Mr Plummer who has had to initiate matters and, as far as I can see, he really has had no meaningful assistance from Royal Herbert whatsoever.”
“…there was no proactivity on their [Royal Herbert Freehold Ltd] part but simply reaction which was generally in the negative; they gave the impression of wanting to assist from time to time without actually then doing anything to do so… It seems to me clear that there needs to be a sea change in attitude by Royal Herbert towards disabled persons.
“I also entirely agree that he [Mr Plummer] has had to face “numerous hurdles and delays”; the length of time, for example, that it took the Board to make decisions was unacceptable.
“I conclude that the process has been humiliating and demeaning for Mr Plummer and his worth and self-esteem will have been diminished. I also conclude that he placed considerable reliance on his ability to swim which was part of his fight against the encroachment of his MS. It is an unhappy fact that it is a fight which will ultimately be lost but I am not sure that Mr Plummer (or, indeed, his wife) could have done more to protect his position and it is right that I acknowledge his tenacity and determination in dealing with this matter over a considerable period of time.
“There are aggravating factors in this case which are the implacable attitude and approach of Royal Herbert throughout, the substantial period over which Mr Plummer has had to endure a failure to act together with the indirect discrimination, and the rather cavalier and non-committal approach that seems to have been taken by the Board including as to making decisions within any reasonable timeframe.”
Nick Webster, from law firm Leigh Day who represented Mr Plummer, said:
“This is an incredibly powerful moral and legal victory for Mr Plummer, and vindication for the claim he pursued. All Mr Plummer wanted to do was use a swimming pool, not only for the simple enjoyment of swimming, but because it was the only physical activity he could do. Mr Plummer just wanted a level playing field, and this was denied him for years. This denial not only isolated him, and caused him to have to go through protracted and complex legal proceedings, but also had a significant impact on his well-being. This judgment should now be a warning to all management companies and housing associations operating a leisure facility in a similar manner that they must make the reasonable adjustments for the benefits of a disabled resident, not that the law should provide them with that incentive.
“This case has clarified the law in a number of ways, not only in finding that the management company is a service provider, but also with regard to the approach to time limits in such claims and the reasonableness of adjustments sought. Where a person’s situation has sufficiently changed since they first requested reasonable adjustments, which were refused, the Court has found that a person is entitled to ask again, and that the defendant will not be able to sit back in comfort and say that time runs from the first refusal.
“We consider it likely that other people may be in a similar situation to our client and hope that the findings within this thorough judgment may help them to obtain the assistance they require.”
Mr Plummer said: “From the beginning I could see that RHP were unwilling to help, as they seemed to regard my needs as a distraction. This epic struggle has worn me out over the last 5 years. My health has declined and paying for a facility I cannot use has been upsetting.”
The EHRC, who helped fund the claim, said: “The Equality and Human Rights Commission supported this case as it highlighted a gap in the law around reasonable adjustments and it wanted to ensure management companies are aware of their responsibilities to help disabled people overcome barriers. The Commission is considering follow-up action with RHF Ltd.”