Housing – Assured tenancy – Possession – Appellant landlord applying for possession order against disabled respondent tenant – County court finding possession order proportionate and making suspended order – Appellant issuing warrant for possession – Respondent applying to suspend warrant – Whether court being required to carry out proportionality exercise a second time – Appeal allowed
The appellant was a registered community benefit society which provided social housing and was the successor in title to the ownership of 38a Victoria Road, Surbiton, Surrey. The respondent held an assured tenancy of a flat in the property. Following numerous acts of nuisance and harassment committed by the respondent in breach of his obligations under the tenancy, the appellant sought an order for possession of the flat.
The respondent admitted material breaches but said they arose in consequence of his disability in the nature of personality and behavioural disorders and that the proceedings discriminated against him contrary to section 15 of the Equality Act 2010. The respondent said it was unfavourable to him due to his conduct in consequence of his disability and not a proportionate means of achieving a legitimate aim.
The appellant accepted that the disability was a protected characteristic under section 4 of the 2010 Act. The county court held that, although it was unfavourable to the respondent, possession would be a proportionate means of achieving a legitimate aim and made a suspended possession order on condition that he committed no further material breaches.
There were further complaints about the respondent’s conduct almost immediately and the appellant issued a warrant for possession.
On the respondent’s application for its suspension, the question arose whether the court should proceed on the basis that as the district judge was satisfied that the suspended possession order did not discriminate against the respondent because of his disability and there was no suggestion of any material change of circumstances in the meantime, it was unnecessary for the court to consider whether the proposed eviction would discriminate against the respondent on disability grounds.
A second district judge held that it was unnecessary to consider again whether the proposed eviction would discriminate against him on disability grounds and refused the application.
A recorder allowed the respondent’s appeal against that refusal, holding that the district judge had failed to apply the requirements of section 35(1)(b) of the 2010 Act that a landlord was required not to discriminate against an occupier by evicting them or taking steps to secure their eviction at the point when the order came to be enforced. The warrant was suspended until the question of potential discrimination against the respondent was determined. The appellant appealed.
Held: The appeal was allowed.
(1) In a case in which, following a section 15(1)(b) proportionality analysis, a court made a lawful outright 28-day possession order with which the tenant failed to comply, so that the landlord had then to issue a warrant for possession, the tenant was not at that point entitled to require the court to embark afresh upon the same proportionality exercise that it had made when ordering possession.
When making the possession order, the court had undertaken the relevant proportionality inquiry. It had satisfied itself that possession had to be given and that, if it was not, the order could lawfully be enforced. The order was binding between the parties.
The tenant could have no right, absent any relevant change of circumstances, to require the court to re-consider the same question upon the landlord’s claim to enforce the order. The recognition of such a right would be a recipe for repeated applications of a vexatious nature.
There was no such right. There would be cases where between the making of the possession order (whether suspended or outright) and its enforcement there had been a material change of circumstances such that a legitimate question would arise as to whether it was still proportionate to enforce the possession order. In such a case, the court would have to re-consider the section 15(1)(b) proportionality inquiry.
That, however, was not this case. The recorder was wrong to hold that the appellant’s claim to enforce the order had to be the subject of such an inquiry. In any event the district judge on the respondent’s application regarded enforcement of the order as a proportionate means of achieving a legitimate aim.
The recorder had been of the opinion that it was the eviction itself that was the central act in the drama of possession proceedings against a disabled tenant, and that even though the court might earlier have held that the making of a suspended order for possession was not discriminatory, it nevertheless had, of its own motion, to reconsider the same question at the point when such an order came to be enforced.
Such an approach could not be supported. Accordingly, the recorder’s order would be set aside: Aster Communities Ltd (formerly Flourish Homes Ltd) v Akerman-Livingstone [2015] UKSC 15; [2015] EGLR 39 applied.
Ryan Kohli (instructed by Batchelors, of Bromley) appeared for the appellant; Edward Fitzpatrick and Justine Compton (instructed by GT Stewart Solicitors and Advocates) appeared for the respondent.
Eileen O’Grady, barrister
