Disability discrimination – Possession order – Equality Act 2010 – Local housing authority finding temporary accommodation for appellant pursuant to housing duties under Housing Act 1996 – Flat let by respondent housing association – Respondent seeking possession after authority concluding that housing duty at an end – Whether appropriate to grant immediate possession order – Whether full trial required to consider appellant’s defence of disability discrimination contrary to section 15 of 2010 Act – Appeal dismissed
In 2010, the appellant was homeless and suffering from severe prolonged duress stress disorder (PDSD). The local district council, as housing authority, accepted that they owed him the “main housing duty” under section 193(2) of the Housing Act 1996 and were accordingly obliged to secure that housing was available for him. They found temporary housing for the appellant with the respondent housing association, which let a flat to him, and subsequently offered him a choice of different properties as permanent accommodation. The appellant was unable to cope with the process and did not choose one of the properties offered.
Under section 193(5), the main housing duty came to an end in the event of a refusal to accept suitable accommodation offered by the housing authority. After a time, the authority concluded that it had discharged its duty and that its housing duty was at an end. It instructed the respondent to take proceedings to evict the appellant from the property so that it could be made available to another homeless person to whom the authority owed a housing duty.
In his defence to the respondent’s possession claim, the respondent contended that the possession proceedings amounted to discrimination against him by reason of his disability, contrary to section 15 of the Equality Act 2010. The county court summarily rejected that defence and granted a possession order accordingly. That decision was subsequently upheld by a High Court judge, who held that the appellant had no seriously arguable case on section 15 and that, accordingly, there was no need for a full trial and an immediate possession order should be granted. In reaching that conclusion, he proceeded by analogy with cases in which a possession order was sought against a person who advanced a defence based on his right to respect for his home under Article 8 of the European Convention on Human Rights. The appellant appealed.
Held: The appeal was dismissed.
Even if the possession proceedings were capable of amounting to an act of discrimination on the grounds of the appellant’s disability, that discrimination would not be unlawful if the respondent could show that the proceedings were a proportionate means of achieving a legitimate aim, within section 15(1)(b) of the 2010 Act. The situation was analogous with cases under Article 8 of the Convention, where the right to respect for a person’s home under Article 8(1) was qualified by Article 8(2), permitting interference with that right by a public authority provided it was a proportionate means of achieving a legitimate end. The difference was that, where a tenant relied on Article 8, the burden was on him to show that the making of an outright possession order would be disproportionate, whereas, under section 136 of the 2010 Act, the burden of proof was shared and the tenant need only show that there were facts from which a conclusion of discrimination could be drawn in the absence of any other explanation, with the burden then shifting to the authority to show that the pursuit of the possession proceedings was a proportionate means of achieving a legitimate end. However, despite those differences, both defences were concerned with the proportionality exercise.
Where a tenant relied on Article 8 as a defence to possession proceedings brought by a local housing authority or social landlord such as a housing association, the court would make a summary assessment of the Article 8 defence on the basis of the facts put before it and would only proceed to hear the defence if it passed the high threshold of being seriously arguable, which would happen in only a small proportion of cases: Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104; [2010] 3 EGLR 113 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 186; [2011] PLSCS 59 applied. The court should approach a defence based on disability discrimination in the same way. If it found that the defence was not seriously arguable, CPR 55.8 enabled it to dispose of the matter without a full trial.
As with Article 8 cases, the proportionality exercise would generally involve several cumulative steps and, if the court found that one was not met, there was no need to go on with the others. When considering proportionality, no distinction could be made between a possession claim brought by a local housing authority and one brought by a social landlord, such as a housing association, acting on the instructions of the authority. As in Article 8 cases, the countervailing interest of the social landlord in obtaining possession would in most, if not all, cases outweigh that of the person who relied on disability discrimination. In both types of case, the social landlord was pursuing proceedings in order to recover property that might be used to provide accommodation for other homeless people. That conclusion was unaffected by the shared burden of proof under section 136. The person relying on disability discrimination had to show certain threshold matters but these did not include the question of justification, which was a proportionality exercise. There was no rational basis for giving diminished weight to the social landlord’s interest when the tenant was relying on disability discrimination rather than Article 8.
A social landlord had to decide how to allocate its finite stock of housing, would be aware of a tenant’s disability and could weigh up his need against that of others who needed accommodation. Even if such a person lost his property, he would still be a person with “priority need” who was entitled to the more limited housing duties owed by the local housing authority under section 190(2) of the 1996 Act, requiring them to give him a reasonable opportunity to obtain his own accommodation and provide him with advice and assistance in that regard. In those circumstances, a tenant would succeed in his disability discrimination case only if he could show some considerable hardship that he could not fairly be asked to bear, for example that he had complex housing need that simply could not be met by the provision of accommodation in some other way. On the facts of the instant case, the judge had been entitled to find that the appellant had no seriously arguable case on his disability discrimination defence.
Jan Luba QC and Russell James (instructed by Shelter Legal Services, of Bristol) appeared for the appellant; Nicholas Grundy and Sara Beecham (instructed by Clarke Wilmott LLP) appeared for the respondent.
Sally Dobson, barrister
