Section 15(1)(a) of the Equality Act 2010 provides that a person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B’s disability. By virtue of section 15(1)(b) of the 2010 Act, person A will not be guilty of discrimination if they can show that the treatment was a proportionate means of achieving a legitimate aim. In Thiam (a protected party, by her litigation friend, the Official Solicitor) v Richmond Housing Partnership [2025] EWHC 933 (KB) the High Court has provided useful guidance on the approach the court should adopt when determining the issue of proportionality.
Key points
- Proportionality under section 15(1)(b) of the Equality Act 2010 must be assessed objectively
- The question of proportionality had to be considered in the round and contextualised
The parties and the claim
Richmond Housing Partnership was a social landlord. In 2009, it granted Catherine Thiam a tenancy of a property situated in Richmond, TW9.
In October 2020, RHP commenced possession proceedings against Thiam on the basis of grounds 8, 12, 13 and 14 of Schedule 2 to the Housing Act 1988. It was alleged that Thiam was in significant rent arrears and that she was in breach of covenant by failing to allow RHP’s contractors access to the property. It was further alleged that Thiam had caused the condition of the property to deteriorate due to neglect and hoarding and that one of her children living at the property was engaging in anti-social behaviour.
Thiam defended the claim for possession and issued a counterclaim. She contended that she was disabled within the meaning of section 6 of the 2010 Act. As well hoarding, Thiam suffered from simple schizophrenia and housing disorder. She contended that RHP’s decision to seek possession on ground 13 of Schedule 2 to the 1988 Act was, for the purposes of section 15 of the 2010 Act, unfavourable treatment because it comprised an act in consequence of her disability that was not justified by the defence afforded by section 15(1)(b) of the 2010 Act.
The trial
Prior to issuing its possession claim, RHP carried out a proportionality assessment. Thiam was treated by RHP as being under a disability but it did not find a causal link between the same and her actions.
The trial was heard by Judge Luba KC. He found Thiam was disabled within the meaning of section 6 of the 2010 Act. Further, he found the consequences of her illness meant the acts RHP complained of in reliance on ground 13 of schedule 2 to the 1988 Act were acts that occurred as a consequence of Thiam’s disability. Yet, the judge determined that RHP, in seeking possession, had acted proportionately in pursuing its legitimate aims: namely, to ensure its properties were properly maintained, tenants complied with the terms of their tenancy conditions and that they paid their rent.
In awarding possession, the judge observed that RHP had attempted to assist Thiam with her hoarding but she failed to engage. RHP could not have been expected to do more in the circumstances. In particular, it could not have made an application to the Court of Protection or made a general capacity assessment, as suggested by Thiam, as RHP did not have the skills or resources to do so.
The approach
Thiam appealed the order for possession. She argued that RHP:
(a) did not, when commencing the possession proceedings, recognise that her hoarding was a symptom of her disability;
(b) did not put in place “ specialist intervention”; and
(c) failed to make an application to the Court of Protection.
The High Court provided guidance as to the correct approach to adopt when determining the question of proportionality under section 15(1)(b) of the 2010 Act. First, the question had to be determined objectively. Second, the issue of whether an unfavourable action was “proportionate” was not the same as merely asking whether the person concerned could have done more in the circumstances. Lastly, the decision on proportionality required the court to consider holistically the nature of the unfavourable treatment, the nature of the disability complained of and any acts or admissions of the alleged discriminator in the context of the circumstances that prevailed. In the present case, the relevant context was the contractual relationship of landlord and tenant that existed between the parties as governed by the terms of the tenancy agreement.
No errors
Ground 1 of the appeal was dismissed because whether RHP considered Thiam to be disabled and whether it deemed there to be a causal link between her disability and her actions were not central to, or determinative of, the issue of proportionality. The question of proportionality was objective. It had to be approached assuming there was a connection between Thiam’s disability and the state of affairs RHP was seeking to address. The trial judge had adopted this approach.
Grounds 2 and 3, which were interlinked, were also dismissed. RHP was under no obligation to retain “specialist assistance” or make an application to the Court of Protection to satisfy the proportionality requirements under section 15(1)(b) of the 2010 Act. The steps it could take were restricted by the existing contractual relationship of landlord and tenant. The interventions Thiam was asking RHP to make fell outside the ambit of what reasonably could be asked of a landlord.
Elizabeth Dwomoh is a barrister at Lamb Chambers
