Housing – Disability discrimination – Possession – Equality Act 2010 – Appellant housed in temporary accommodation pursuant to housing duties of local authority – Respondent landlord seeking possession after housing authority concluding that housing duty at an end – Whether full trial required to consider appellant’s defence of disability discrimination contrary to section 15 of 2010 Act – Whether that issue to be dealt with summarily in same way as defence under Article 8 of European Convention on Human Rights – Appeal dismissed
In 2010, the respondent was homeless and suffering from severe prolonged duress stress disorder (PDSD). He was provided with temporary housing, in a flat let to him by the respondent housing association, pursuant to the local authority’s housing duties under section 193(2) of the Housing Act 1996. The respondent subsequently rejected various properties offered to him as permanent accommodation. The local authority eventually decided that their housing duty had come to an end under section 193(5) since the appellant had refused an offer of suitable accommodation. They instructed the respondent to take proceedings to evict the appellant.
The respondent contended that the possession proceedings amounted to discrimination against him by reason of his disability, contrary to sections 15 and 35 of the Equality Act 2010. The county court summarily rejected that defence and granted a possession order. That decision was upheld in the High Court and the Court of Appeal, both of which held that, where disability discrimination was relied on as a defence to a possession claim by a social landlord, the courts should take the same summary approach to proportionality as they did in cases where a defence was raised under Article 8 of the European Convention on Human Rights. They accordingly held that an immediate possession order could be made, without conducting a full trial, where the occupier had no seriously arguable case on disability discrimination: see [2014] EWCA Civ 1081; [2014] PLSCS 229.
The appellant appealed to the Supreme Court. By that time, the freeholder of the building was seeking to sell it with vacant possession and had terminated the respondent’s leasehold interest in the flat by giving notice to quit.
Held: The appeal was dismissed.
Where a defence of disability discrimination was raised, the court had to answer two key questions under section 15 of the Act, namely whether the disabled person was treated unfavourably because of something arising in consequence of his disability and whether that treatment was a proportionate means of achieving a legitimate end. By virtue of section 35(1)(b), discrimination by evicting a person was unfavourable treatment for the purposes of section 15. While the rights contained in Article 8 of the Convention and in section 35 of the 2010 Act both depended on proportionality, there were important differences between the two.
First, section 35 of the 2010 Act applied to both private and public sector landlords, whereas only public authorities were obliged by the Human Rights Act 1998 to act compatibly with Convention rights. Further, while all occupiers had a right to respect for their home, sections 15 and 35 of the 2010 Act afforded additional rights to disabled people in respect of the accommodation that they occupied. The protection afforded by section 35(1)(b) was additional to, and stronger than, that given by Article 8 and provided a particular degree of protection to a limited class of occupiers who were considered to deserve special protection.
The burden of proof under the 2010 Act was also different. In Article 8 cases, involving possession claims brought by social landlords against occupiers who otherwise had no right to remain in the property, the right to respect for the occupier’s home would almost always be trumped by the twin aims of making a possession order in favour of a local authority, namely to vindicate the authority’s property rights and to enable the authority to comply with their statutory duties in the allocation and management of the available housing stock. The court would therefore deal with the claim summarily unless the case raised by the occupier crossed the high threshold of being “seriously arguable”. By contrast, if there were facts from which the court could conclude that an eviction was because of something arising in consequence of a person’s disability, then the burden shifted to the alleged discriminator to prove otherwise, or to show that the eviction was nonetheless a proportionate means of achieving a legitimate end. A full trial would normally be appropriate in equality cases and summary disposal would be justified only where the claim was not genuinely disputed on grounds that appeared to be substantial.
In the instant case, while the facts at the time of the county court decision had been such as to require a consideration of the merits of the discrimination defence, events had since moved on and it was not appropriate to send the case back for a hearing. On the facts as they presently stood, a possession order was inevitable.
Jan Luba QC, Russell James and Catherine Casserley (instructed by Shelter Legal Services, of Bristol) appeared for the appellant; Daniel Stilitz QC, Nicholas Grundy and Sara Beecham (instructed by Clarke Wilmott LLP) appeared for the respondent; Monica Carss-Frisk QC and Jason Pobjoy (instructed by the Equality and Human Rights Commission) appeared for the intervener.
Sally Dobson, barrister
