Anti-social behaviour by tenants — Possession proceedings by council — Whether tenants disabled — Whether council justified in seeking possession — Relationship between Housing Act 1985 and Disability Discrimination Act 1995 — Appeals dismissed
The appellants were both secure tenants of the respondent council. In both cases, injunctions were granted against them, following complaints by neighbours, to restrain anti-social and abusive behaviour. These injunctions were not complied with. In both cases, the council applied for possession orders under grounds 1 and 2 of Schedule 2 to the Housing Act 1985, relying upon the tenants’ behaviour. In each case, the judge found that it was reasonable to grant the order.
At first instance in the second case, and upon a first appeal in the first case, medical evidence was produced, indicating that both tenants were on medication to treat a depressive disorder. The issue arose as to whether their eviction was contrary to the Disability Discrimination Act 1995. By section 24(2) and (3) of that Act, if the council had evicted the appellants for reasons related to a disability from which they suffered, that would amount to unlawful discrimination. This would also be contrary to section 22(3)(c), unless the council could justify their treatment of the appellants on the basis that they reasonably held the opinion that it was necessary in order not to endanger the health or safety of any person. In both cases, neighbours had given evidence as to the effects of the anti-social behaviour on them: in one case, a neighbour had suffered loss of sleep, while in the other a neighbour had become depressed.
In the first case, the judge concluded that, although the tenant’s condition amounted to mental impairment within the meaning of section 1(1) of the 1995 Act, it did not have a substantial effect on her ability to carry out day-to-day activities, so that the second part of the test was not met and she was not to be regarded as a having a disability. In the second case, the judge held that although the tenant had a mental impairment, it was not the cause of her anti-social conduct. Moreover, he found that the eviction was justified under section 24. On appeal, issues arose as to the relationship between the 1985 and 1995 Acts.
Held: The appeals were dismissed.
Where a person complained about disability discrimination, the court had first to determine whether that person was a disabled person within the meaning of the 1995 Act. If so, and if the council were seeking a possession order for reasons related to the disability, that action would be unlawful, unless they could justify their conduct under section 24. The test of justification was both subjective and objective: it was necessary both that the council held the opinion that their action was justified on section 24 grounds, and for that opinion to be objectively reasonable. In the first case, had the section 22 point been taken at the initial trial stage, evidence would have led properly to a conclusion that the neighbours’ health was endangered. Furthermore, had the council’s opinion to that effect been tested at the trial stage, it would have been held to be objectively reasonable. Consequently, it was not necessary to address the question of whether the judge had correctly concluded that the tenant was not a disabled person within the meaning of the 1995 Act.
In the second case, the judge had erred in his findings as to the tenant’s mental state and its effect on her behaviour. However, he was entitled to conclude that the council held the reasonable opinion that the continuation of eviction proceedings was justified in order not to endanger the neighbour’s health. Accordingly, the council was justified in seeking a possession order.
Jan Luba QC, Alyson Kilpatrick and Alexander Durance (instructed by Glaisyers, of Manchester) appeared for the appellants; Andrew Arden QC, Michael Lemmy and Robert Derbyshire (instructed by the solicitor to Manchester City Council) appeared for the respondents; Jillian Brown appeared for the interested party, the Disability Rights Commission.
Sally Dobson, barrister
