The parents of a disabled child have won their appeal from the decision of the High Court in Valencia to install a lift that would permit their child to use the community swimming pool. Their proposal to install the device at their own expense had been turned down by the community of owners at the urbanisation in Gandia, Valencia.
The parents of the disabled child took the matter to the Court of First Instance which agreed with them and ordered the installation could go ahead. However, the matter was appealed to the regional High Court which ruled that the decision by the community of owners had been reached validly, by a majority of the community of owners and could not therefore be overturned.
However, the Supreme Court, on hearing the appeal, has decided that the fact that the fact that the decision was agreed upon by a majority of the community of owners did not permit them to deny construction work that had not been demonstrated to be (nor even alleged to be) prejudicial or detrimental to the other property owners.
Equality of Access
The decision is an important one in the battle for equality of access for those carrying disabilities. The Court based it’s decision on an analysis of the Spanish Constitution, international treaties signed by Spain in relation to the rights of disabled persons, the law of horizontal property and also Law 15/1995 and law 51/2003 that deal with protection of the disabled.
Specifically, the Court stated that these sources of law delineated the limits that could be placed on private ownership of property where this was necessary to permit those with a disability to have equal access to facilities without discrimination.
It was also important to the Court’s considerations that the modifications necessary were not particularly burdensome since the lift was not to be permanently anchored to the swimming-pool but could be detached when required and the fact that the parents of the disabled child had offered to cover the costs associated with installing the lift.
Accordingly the Supreme Court ruled that the decision to refuse authorisation to carry-out the modifications necessary to install the lift was inappropriate and contrary to the law.