Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
The leading case in disability discrimination cases is Ackerman-Livingstone v Aster Communities Ltd  where, in brief, the Supreme Court found that in most cases, where the defence is raised, the landlord will not be able to obtain possession summarily at a first or other short hearing. Instead, where the tenant can demonstrate evidence of a likely disability, the case will proceed to a full hearing where the burden will be on the landlord to show that its decision to seek possession is a “proportionate means of achieving a legitimate aim”. This emphasis on exploring apparent disability discrimination cases has in many cases ensured that tenants’ vulnerabilities are properly taken into account. But in other cases, it has caused delay and incurred costs when it later becomes apparent that there is scant evidence to support the alleged disability or any connection with the breaches of tenancy concerned.
Recently, there has been a reminder of the unwillingness of the courts to dispose of disability discrimination cases at an early ‘summary’ hearing, in the case of Birmingham City Council v Stephenson . In that case, Mr Stephenson had an introductory tenancy and, following complaints of anti-social behaviour, possession proceedings were brought against him. The Council acknowledged that Mr Stephenson had a mental health issues. At the first hearing, the case was adjourned for Mr Stephenson to seek advice. At a second hearing, Mr Stephenson attended with a solicitor who sought a further adjournment to enter a full defence, citing a potential Equality Act defence. The judge found that there was only a tenuous possibility of a defence and he made a possession order. Mr Stephenson successfully appealed and The Court of Appeal found that the judge had not properly taken account of Mr Stephenson’s mental health issues and that there was a real possibility of a pleadable defence. He should have granted an adjournment.
So what can be done to minimise the impact of these defences and, where appropriate, dispose of them?
The key is to ‘get all your ducks in a row’ before issuing a possession claim, which means, as is so often the case, have evidence available and put it into a witness statement or an ‘Equality Act assessment’ document. Carry out as full an investigation into any potential disability as possible, having in mind the questions of:
- What is known about any actual or possible disability?
- Whether there is any less drastic action which could be taken to solve the problem?
- Would the likely effect of a possession claim on the tenant is outweighed by the advantages of taking possession?
Finally, it must be remembered that an alleged disability discrimination defence need not automatically result in a lengthy adjournment and a full trial. It is possible to deal with Equality Act defences, so keep in mind the criteria provided in the Ackerman-Livingstone case for when a disability discrimination defence can be summarily disposed of, which is where:
- The tenant has no real prospect of proving that he was disabled;
- That it was plain that possession was not being sought because of something arising in consequence of his disability; or
- That bringing and enforcing the claim was plainly a proportionate means of achieving a legitimate aim.
We recently represented an association, which successfully resisted a disability discrimination defence at a first hearing by focusing on the lack of a ‘causal link’ between the alleged disability and the reasons for seeking possession. The tenant’s solicitor cited her client’s epilepsy and depression. However, the judge agreed with our representations that the tenant’s aggressive and intimidating behaviour towards the local community could not be said to be as a result of either condition and an immediate possession order was granted.
For more information, please contact Robert Whitehouse.
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