Landlord and tenant – Assured tenancy – Possession – Claimant’s representative seeking adjournment of proceedings owing to claimant’s mental state – Court refusing application – Whether claimant having capacity to conduct legal proceedings – Whether disability legislation protecting claimant – Appeal dismissed
Since May 1996, the appellant had been the assured tenant of premises owned by the respondent landlord. The appellant fell into arrears with his rent and, in 2001, an order by consent in the county court required him to pay £4,206.80 within six months. The appellant admitted that the entire sum remained outstanding. In September 2003, the appellant again fell into arrears and the respondent gave him notice, under section 8 of the Housing Act 1988, that she intended to apply to the court for a possession order on grounds 8, 10 and 11 in Schedule 2 to the 1988 Act. Grounds 10 and 11 gave the court a discretionary power to make a possession order in certain circumstances if it considered it reasonable to do so: section 7(4). By contrast, ground 8 was a mandatory ground under which the court had to make an offer if a minimum of eight weeks’ rent remained unpaid, both at the date of the service of the section 8 notice and at the date of the hearing.
The appellant filed his own defence but, on the day of the hearing, he was represented by a person who was experienced in helping tenants who suffered from mental health problems. The representative sought an adjournment of the proceedings under CPR 21 in order for an investigation to be made into the appellant’s mental capacity to conduct legal proceedings. The district judge took the view that, irrespective of the appellant’s mental state, there was no defence to the application whether the appellant was mentally ill or not and she therefore made a possession order. The county court rejected the appellant’s appeal, but he appealed to the Court of Appeal.
The appellant contended that the district judge had erred in law by concluding that: (i) an adjournment to investigate the appellant’s mental capacity was not warranted; (ii) there were no exceptional circumstances to adjourn the possession claim; and (iii) there was no basis upon which to resist the possession proceedings under the Disability Discrimination Act 1995 that warranted an adjournment.
Held: The appeal was dismissed.
(1) There was insufficient material before the district judge to conclude that she was wrong in exercising her discretion not to grant an adjournment on the ground of capacity. There was no indication that the appellant might not understand the comparatively simple and straightforward issues raised in the proceedings upon which his input was likely to be necessary: Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 1 WLR 1511.
(2) There was no evidence to suggest that the arrears of rent had arisen because of the appellant’s incapacity or disability. He suspended payment of rent because he considered the rent to be an illegitimate and excessive demand on the part of the landlord. His reliance upon his ill health, disability and old age was in the context of a plea that he would suffer exceptional hardship if a possession order were to be made: North British Housing Association Ltd v Matthews [2004] EWCA Civ 1736; [2005] 1 EGLR 31; [2005] 13 EG 136 considered.
(3) It was not arguable in the circumstances that the Disability Discrimination Act 1995 provided a defence to the claim for possession. It was enacted to provide remedies for disabled people who suffered unlawful discrimination and who could not provide a basis for resisting a claim for possession on a statutory mandatory ground. It was not unlawful to evict a disabled person from premises by lawful process unless it involved unjustified discrimination, as defined in section 24 of the 1995 Act: Manchester City Council v Romano [2004] EWCA Civ 834; [2005] 1 WLR 2775 considered; Lewisham London Borough Council v Malcolm [2007] EWCA Civ 763; [2008] 2 WLR 369 distinguished.
Jan Luba QC and Michael Paget (instructed by the Brighton Housing Trust) appeared for the appellant; David Giles (instructed by Sherringtons) appeared for the respondent; Robert Latham and Catherine Casserley (instructed by the solicitor for the Equality and Human Rights Commission, of Manchester) appeared for the Commission, as intervener.
Eileen O’Grady, barrister
