Disability discrimination – Possession order – Equality Act 2010 – Respondent housing association letting flat to appellant – Respondent obtaining possession order on basis of anti-social behaviour – Appellant appealing – Whether judge erring in rejecting defence based on public sector equality duty in section 149 of the Equality Act 2010 – Appeal dismissed
The respondent was a housing association which let a property at 34 Wilmington Close, Watford to the appellant under an assured tenancy. The appellant appealed against a possession order made by the county court on the basis of his anti-social behaviour. The appellant had a history of drug and alcohol misuse. Prior to the possession proceedings the police had obtained a closure order following the execution of a warrant at the flat.
It was common ground that there had been a breach of the respondent’s public sector equality duty (PSED) under section 149 of the Equality Act 2010. However, the judge concluded that although she did not accept all the respondent’s allegations, the grounds for a possession order were made out. She recognised that the appellant was physically disabled but was not satisfied that he suffered from any disability by reason of mental impairment. Furthermore, she was not persuaded that there was any causal link between the appellant’s physical disability and the anti-social behaviour.
The appellant contended that alleged anti-social behaviour at or connected to his flat must have been a consequence of his mental impairment. The appellant being a disabled person within section 6 of the 2010 Act, it was necessary for the respondent to have regard to the PSED in deciding whether to seek a possession order. Such regard required more than lip-service and the judge was wrong to reject a defence to the possession claim based upon the PSED in section 149.
Held: The appeal was dismissed.
(1) By section 136 of the 2010 Act, if there were facts from which the court could decide, in the absence of any other explanation, that the provision had been contravened, the burden shifted to show that that did not happen. A four-stage approach applied to establishing disability discrimination (assuming that there was a disability within the meaning of the act): (i) what were the aims or objectives in taking the action of securing eviction; (ii) was there a rational connection between the objectives and the eviction; (iii) was the eviction no more than was necessary to accomplish the objectives; and (iv) was the eviction proportionate in the wider sense, striking a fair balance between the advantage of achieving the objective and the disadvantage of eviction to a disabled person: Aster Communities Ltd v Akerman-Livingstone [2015] UKSC 15; [2015] EGLR 39 followed.
(2) In seeking a possession order it was necessary to take steps to have such regard to the tenant’s disability as was appropriate in all the circumstances. What was appropriate depended, amongst other things, on the evidence before the public authority (and the court) of the degree of both the disability and the likely impact of the granting and enforcement of a possession order. On the evidence, there was no causal link between the appellant’s disability and the anti-social behaviour and nuisance. In the light of the seriousness of the breaches and the fact that the appellant appeared to show no insight into his conduct or accept any responsibility for it, there was no other viable alternative to seeking possession. Standing back and considering the question whether the eviction was proportionate in the wider sense, the decision to take possession proceedings struck a fair balance between the respondent’s need to reduce the incidence of anti-social behaviour and nuisance from the appellant and his visitors, and the disadvantages that the appellant would suffer as a disabled person by reason of his eviction. It was reasonable in the circumstances to make a possession order: Barnsley Metropolitan Borough Council v Norton [2011] EWCA Civ 834; [2011] PLSCS 192, Bracking v Secretary of State for Work and Pensions [2013] EWCA 1345 and R (Blake & others) v Waltham Forest London Borough Council [2014] EWHC 1027 (Admin); [2014] PLSCS 116 followed.
(3) The appellant had not adduced cogent evidence to show that if the order were to be suspended, the behaviour would not recur or would be unlikely to do so. In the circumstances, suspension was not appropriate. The burden was on the appellant to show that there had been or was likely to be any improvement in his behaviour. The appellant correctly identified flaws in the judge’s approach, in particular her conclusion that breach of the PSED was incapable of being raised as a defence to possession proceedings unless connected to a private law right. There could be no question that a simple proportionality assessment was not what the PSED required. A rigorous consideration of the impact of the decision to commence eviction proceedings, against the equality objectives encapsulated in the PSED was required with an open mind. That consideration had to be in the context of promoting the statutory objectives.
(4) The judge had carefully assessed the alternative measures, short of eviction, suggested to her and reached rational conclusion on each one. When faced with an intransigent tenant whose behaviour caused distress to fellow residents over an extended period of time it could not be necessary for the respondent to have tried every single option prior to seeking eviction. Whilst the judge did not carry out a structured enquiry, believing that it was unnecessary, her judgment showed that she regarded the enforcement of a possession order as a proportionate means of achieving a legitimate aim. She had to consider the reasonableness of permitting the order, and enforcement if necessary in due course. The failure to have due regard to the important matters set out in section 149 in the structured way required by the legislation was not a material error in this case. It would be unfair and disproportionate to allow the appeal because of the errors in the judge’s approach when the entitlement of the respondent to seek eviction and the reasonableness of making the order sought had already been clearly established on the facts: R (West Berkshire District Council and another) v Secretary of State for Communities and Local Government [2016] EWCA Civ. [2016] EWCA Civ 441; [2016] PLSCS 137 followed.
Toby Vanhegan, Nick Bano and Hannah Gardiner (instructed by Arkrights Solicitors) appeared for the appellant; Ben Maltz (instructed by Devonshires Solicitors) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Forward v Aldwyck Housing Group Ltd
