Housing – Possession – Disability discrimination – Respondent housing association obtaining possession order against appellant tenants on grounds of son’s antisocial behaviour – Appellants appealing – Whether judge misapplying causation tests in section 15 of Equality Act 2010 when considering whether son’s disability and antisocial conduct materially influenced decision to seek possession – Whether judge properly assessing respondent’s proportionality defence – Whether judge’s decision irrational – Appeal allowed
The appellants were tenants of one of the respondent housing association’s properties at 9, Harpers Brook, Towcester, Northamptonshire. They had lived there with their children since 2013. After numerous incidents of antisocial behaviour and complaints of criminal behaviour from neighbours and others, the respondent decided in late 2018 not to offer renewal of their five-year fixed term tenancy, which expired in September 2018. In April 2019, the respondent served a notice under section 21 of the Housing Act 1988, requiring possession to be given up in June 2019.
The county court made a possession order against the appellants following his judgment allowing the respondent’s possession claim. The judge rejected the defence that evicting the appellants would breach section 15 of the Equality Act 2020 (discrimination arising from disability) because it would unlawfully discriminate against their son (C) by treating him unfavourably because of something arising in consequence of his disability; C being disabled with attention deficit hyperactivity disorder (ADHD) causing him to behave antisocially.
The appellants appealed, contending: (i) the judge misapplied the causation tests in section 15 when considering whether C’s disability and consequent antisocial conduct materially influenced the respondent’s decision to seek possession; (ii) in considering whether the respondent could raise a proportionality defence, the judge wrongly took account of C’s behaviour; and (iii) the judge failed to assess proportionality based on the factual position at the date of trial; or, alternatively, decided irrationally that the proportionality defence succeeded.
Held: The appeal was allowed.
(1) Section 15(1)(a) of the 2010 Act provided that a person (A) discriminated against a disabled person (B) if A treated B unfavourably because of something arising in consequence of B’s disability. The issue for the judge was whether by bringing the eviction proceedings the respondent treated C unfavourably because of his antisocial behaviour.
The judge’s own findings demonstrated that C’s behaviour and disability had a significant influence on the outcome. Where that was so, discrimination was made out. The judge’s ensuing contrary conclusion was untenable. After finding that C’s disability and the behaviour that resulted from it was a factor contributing to the decision to seek possession, the judge then found, inconsistently, that service of the notice seeking possession was not significantly influenced by the behaviour that, everyone agreed, resulted from C’s disability: Nagarajan v London Regional Transport [2000] 1 AC 501 considered.
(2) C’s behaviour was relevant to the decision to seek possession and the judge was wrong to decide otherwise when applying section 15(1)(a) of the Act.
It did not follow that because the decision to seek possession was made for broader reasons than just C’s antisocial behaviour, that behaviour played no significant role in the decision. The respondent’s attempt ex post facto to excise C and his behaviour from the grounds of decision was as unreal as was the judge’s acceptance of the respondent’s argument that it did so. The first ground of appeal was therefore made out.
(3) The appellants also had to succeed in impugning the judge’s finding that the respondent’s defence of justification succeeded: the discriminator had to show, under section 15(1)(b) of the Act, that “the treatment is a proportionate means of achieving a legitimate aim”.
Since C’s behaviour (contrary to the judge’s conclusion) materially influenced the decision to seek possession, the judge was right to take his behaviour into account when assessing proportionality; and in that context was right, implicitly, to reject the respondent’s late and ex post facto disavowal of C’s conduct as a factor in its decision.
The judge was right to include C’s behaviour in the assessment of proportionality but wrong to exclude it in the assessment of causation. It was undeniably relevant to both issues. The second ground of appeal was therefore not made out.
(4) The court had to make its assessment of proportionality on the basis of the factual position as at the date of trial. Both parties agreed that it would be wrong to confine the assessment of proportionality to an examination of the facts as they stood at the time of the respondent’s decision. The trial was, however, significantly delayed because of the Covid pandemic.
There was no evidence before the court at trial that any member of the appellants’ family had behaved badly in any way during the two-year period from January 2020 to January 2022; there was no evidence of other problems such as rent arrears or dilapidations.
It was not for the appellants to demonstrate by further evidence a change of circumstances since the end of 2019. They did not bear the onus of showing that eviction would not be a proportionate means of achieving a legitimate aim. The change of circumstances was the absence of any evidence of misbehaviour after the start of 2020, in contrast to the copious evidence of misbehaviour before then: Aster Communities Ltd (formerly Flourish Homes Ltd) v Akerman-Livingstone [2015] EGLR 39; [2015] AC 1399 and Paragon Asra Housing Ltd v Neville [2018] EWCA Civ 1712; [2018] EGLR 38 considered.
(5) The judge had focused on the behaviour up to the end of 2019. He did not, contrary to his own self-direction, conduct his proportionality assessment based on the factual position as at the date of trial. That included the absence of any evidence supporting the proportionality defence during the two years leading up to trial.
The judge did not take that absence of evidence into account as he should have done. He conducted his proportionality assessment based on the position as at January 2020. Therefore, the third ground of appeal was well founded.
(6) To determine whether the notice to seek possession remained lawful, ie, proportionate within section 15(1)(b) of the Act, the court needed to consider the up-to-date evidential position. There would have to be a further hearing at which the defence of justification, if still pursued, could be considered with evidence of the position at the date of the remitted hearing.
Accordingly, the judge’s possession order would be set aside, and the matter remitted to him for further consideration of the proportionality defence in the light of the up-to-date evidence at the date of the hearing on remission.
Marina Sergides (instructed by Shelter Legal Services) appeared for the appellants; Michael Singleton (instructed by Bromford Housing Association Ltd) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Nightingale and another v Bromford Housing Association Ltd
