The Supreme Court has decided that disability discrimination may be a stronger defence to a possession claim than human rights
Key points
- Disability is a defence to a possession claim
- It is a wider defence than one based on Article 8 of the European Convention on Human Rights
Discrimination on the grounds of race, gender, disability or other characteristics has been unlawful for decades. Currently the law is set out in the Equality Act 2010 (the “2010 Act”). “Disability” is a physical or a mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. It is one of the “protected characteristics” referred to in section 4 of the Act.
It may be unlawful to evict a disabled person even though they have no other claim to remain in the property (see Lewisham London Borough Council v Malcolm [2008] UKHL 43; [2008] PLSCS 181).
Discrimination in possession claims
How should a court hearing a possession claim deal with a defence based on disability? Should the same principle of proportionality apply as applied in the many human rights cases? In two such cases – Manchester City Council v Pinnock [2010] UKSC 45; [2010] 3 EGLR 113 and Hounslow London Borough Council v Powell; Leeds City Council v Hall; Birmingham City Council v Frisby [2011] UKSC 8; [2011] PLSCS 59 – the Supreme Court ruled that, where an occupier raises a defence that the claim breaches their rights under Article 8 of the European Convention on Human Rights, the court must be satisfied that it is proportionate to make an order for possession. However, the court can deal with this issue summarily and the burden of demonstrating that it is disproportionate to seek to evict is a heavy one.
If discrimination is raised as a defence, should the court take the same approach? This was essentially the issue in Aster Communities Ltd (formerly Flourish Homes Ltd) v Akerman-Livingstone [2015] UKSC 15; [2015] PLSCS 83. The Supreme Court decided unanimously that a different approach applied and that in many respects such a defence may be stronger than one based on Article 8. However, the occupier’s appeal against a possession order was dismissed, the court concluding that a possession order was inevitable.
The facts
The occupier, who was homeless, was given temporary accommodation while his application for housing assistance as a homeless person was being considered (under the Housing Act 1996). He suffered from a serious stress disorder and it was agreed that he suffered from a disability within the meaning of the 2010 Act.
After he turned down several offers of accommodation, his local housing authority notified him that it considered that it had discharged its duty to him, and his housing association landlord then served him with a notice to quit. Possession proceedings followed. The county court rejected his defence, based on both his Article 8 rights and his disability, and found that the landlord was entitled to possession. More generally, the court concluded that exactly the same approach should be taken in determining a defence based on disability discrimination as it is with an Article 8 defence. His appeal was rejected by the High Court and then by the Court of Appeal.
The correct approach
The Supreme Court noted that the most obvious difference between Article 8 and the 2010 Act is that the latter applies to both private and public sector landlords. But the 2010 Act’s duties and obligations are not absolute: a landlord is entitled to evict a disabled tenant if this is “a proportionate means of achieving a legitimate aim” (Lady Hale, para 27). Another difference lies in the burden of proof. Once the possibility of discrimination is made out, the burden of establishing that there was in fact no discrimination shifts to the landlord.
In Article 8 cases, proportionality is to be considered to see if eviction has the legitimate aim of allowing the social landlord to comply with its statutory housing obligations. As there will usually be a strong case justifying possession, the Article 8 defence can usually be considered summarily and will only proceed if there is a seriously arguable case: “it will be a very unusual case where such a defence could succeed” (Lord Neuberger, para 52).
However, where discrimination is raised as a defence, the right to equal treatment is stronger than the Article 8 defence. Although a summary disposal of this issue may still be appropriate, where the possession claim is genuinely disputed on substantial grounds, a full investigation would be necessary. That said, summary judgment could be made where there is no real prospect of the occupier showing a disability, it is plain that possession is not being sought because of the disability, or in any event the claim is “a proportionate means of achieving a legitimate aim” (Lord Neuberger, para 59).
The outcome
In this case the county court had misdirected itself by applying the same test to both defences. Proportionality should have been considered for each of the defences but, crucially, the exercise is not the same for discrimination as it is for an Article 8 defence.
However, there was no point in allowing an appeal and remitting the claim to the county court, as supervening events (the owners of the property had terminated the landlord’s interest and they seek vacant possession to sell the property) meant that a possession order was now inevitable. It would be unfair to the landlord and no kindness to the occupier (who was suffering severe stress from the proceedings) to prolong matters further by arranging a full trial for which the outcome is a “foregone conclusion” (Lord Wilson, para 76).
Professor James Driscoll is a solicitor and a writer
