Possession and disability discrimination – guidance from the Supreme Court

Facts of the case

Mr Akerman-Livingstone (“Mr AL”) suffered from severe mental health problems. In 2010 Mr AL was homeless and applied for housing. While his application was considered by the local authority, Mr AL was placed in temporary accommodation with Aster Communities Ltd (“Aster”), a housing association.

Subsequently, the local authority made 11 offers of permanent accommodation, all of which were rejected by Mr AL. Eventually the local authority informed Mr AL that it considered that it had discharged its duty to him under the Housing Act 1996 and instructed Aster to end his non-secure tenancy agreement. Possession proceedings were commenced and, in defence, Mr AL relied on Article 8 of the European Convention on Human Rights and the Equality Act 2010.

When the matter came before the Court the Judge ruled as a preliminary issue that Mr AL did not have a “seriously arguable” case and that Aster was entitled to possession. Mr AL appealed to the High Court, arguing that the matter should proceed to a fully contested trial and should not have been decided summarily (as proportionality decisions under Article 8 now routinely are). The appeal was dismissed. Mr AL subsequently appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal dismissed the appeal.  In a controversial decision the court found that the judge had been correct to adopt the same approach to a defence based on disability discrimination as a Judge would approach one based on Article 8. Although there were differences between the two defences, the court was concerned with the same proportionality exercise, i.e. are the proceedings and the outcome sought a proportionate means of achieving a legitimate aim?

The Supreme Court granted permission to appeal very quickly.

Supreme Court

On the facts of the particular case, the Supreme Court confirmed that a possession order would be inevitable and as such, unanimously dismissed Mr AL’s appeal. However, the importance of the case lies in the judgment given in relation to defences based on disability discrimination.

The Court noted that the protection afforded by the Equality Act 2010 is stronger than the protection afforded by Article 8. In Article 8 cases it can be generally assumed that the social landlord is acting properly in vindication of their property rights and managing social housing stock appropriately meaning that an eviction will usually be proportionate. However it does not follow that the same can be assumed for a discrimination defence under the Equality Act.

Once facts are established which could give rise to a discrimination claim, the burden will be on the social landlord to demonstrate that there was no discrimination and that the landlord’s aims outweigh the impact on the tenant. Summary disposal (i.e. at an early hearing) may still be appropriate (where a discrimination defence is lacking in substance), but not where a claim is genuinely disputed on grounds that appear to be substantial.

What does this mean for social landlords?

The decision brings into clear focus the importance of distinguishing between Article 8 and disability defences to possession proceedings. The practical consequence to social landlords seeking possession on mandatory grounds is that Equality Act defences are now likely to be raised more frequently.

Where disability discrimination is pleaded as a defence in possession proceedings, Courts will conduct their own proportionality assessment and generally this will not be on a summary basis. Social landlords should therefore;

• review ongoing proceedings where an occupant of the property has a disability;
• expect the use of a disability defences to increase and Article 8 defences to possibly reduce;
• consider your “justification” for seeking possession and record that clearly;
• ensure the reasons for possession are set out clearly in a witness statement by the landlord in the court proceedings; and
• be aware that it is not possible to shortcut a full trial save where an Equality Act claim is clearly weak (e.g. if there is no evidence of a disability).

For more information

To read the full judgment click here. Should you wish to discuss the implications of this case further, please contact Helen Tucker 0121 212 7459, helen.tucker@anthonycollins.com or Rose Klemperer on 0121 214 3504, rose.klemperer@anthonycollins.com.