A recent High Court ruling that a landlord who attempted to evict a psychotic woman with a history of harassing neighbours was guilty of discrimination is bad news for landlords, according to the solicitor acting for the landlord.
Christine Brazier has a history of persistently shouting and swearing at neighbours near her North Devon home, and county court judge ruled that, in view of her behaviour, the landlord was entitled to evict her. The High Court overturned that decision in March, holding that such an eviction would constitute discrimination on the grounds of disability.
Graham Threadingham, of Exeter-based Trowers & Hamlins, says that the decision is one that has “serious implications” for landlords, adding that in future similar cases it may now be necessary for landlords to instruct medical experts if disability arguments are raised.
“Such possession actions will now be won or lost on the strength of the medical evidence,” he told EGi Legal.
“The decision in this case has serious evidential implications for those landlords in the not uncommon situation of seeking to evict a tenant who may be causing nuisance and who suffers from a recognised mental illness.
“North Devon Homes sought possession against its tenant, Ms Brazier, on the basis of her serious antisocial behaviour. Prior to moving to the premises in question, she had, over a period of 2 years, also caused a nuisance at her previous address.
“It was accepted that her behaviour gave rise to a breach of her tenancy terms and conditions and also fell within grounds 12 and 14 of the Housing Act 1988. The only issue was whether, in the circumstances, it was reasonable to evict her.
“Ms Brazier argued that it was not reasonable to do so on the basis that it would be unlawful under the requirements of the Disability Discrimination Act 1995 (DDA), which prohibits the discrimination of disabled persons.
“By virtue of section 22 of the DDA, a person discriminates against a disabled person if, for any reason related to that person’s disability, the former treats the latter less favourably than he would another person not similarly disabled and he cannot show that such treatment is justified.
“Section 24 of the DDA sets out the basis upon which discrimination may be justified. It is reasonable to justify discrimination only if it is necessary in order to protect the health and safety of any person (including the disabled person) and it is reasonable in all the circumstances.
“Ms Brazier produced a psychiatric report that confirmed that she suffered from a serious mental illness and was therefore a disabled person within the meaning of the DDA, that the antisocial behaviour displayed was consistent with that illness, and that she was unable to control it. The expert also confirmed that to evict her would set back her treatment and confirm her delusions of persecution.
“The county court judge, however, had found that it was unreasonable for neighbouring residents to have to continue to tolerate Ms Brazier’s behaviour and accordingly granted an order for possession. But the Appeal Court placed greater emphasis upon the finding that her eviction was not justified under the DDA, and, as a result, decided that it was not reasonable in the circumstances to make a possession order.
“The decision leaves Ms Brazier’s neighbours in a very difficult and unfortunate situation. Although eviction may still be possible, the court, when considering the reasonableness of the eviction, will have to look to the justification of it within the meaning of the DDA.
“In future, where proceedings are issued in similar circumstances in order to justify an eviction, landlords may need to instruct a medical expert to report upon the extent of the defendant’s disability (that is whether he or she is disabled within the meaning of the DDA); whether the anti social behaviour exhibited is indeed consistent with the illness and whether the defendant can control it, and whether the defendant is likely to be a real danger to his or herself and/or any neighbours.
“Landlords may also wish to obtain medical evidence as to the effect of the defendant’s behaviour on their neighbours’ health.
“Only when such evidence is available will the court be in a position to consider the full facts and the issue of reasonableness.
“That being the case, such possession actions will now be won or lost on the strength of the medical evidence.
“Although, under the DDA, the Secretary of State does have the power to make regulations to exempt an act that would otherwise amount to discrimination from being treated as unlawful, representations would need to be made as to the effect of this decision upon the government’s agenda on tackling antisocial behaviour, and, in any event, it would take some time for such regulations to be made.”
North Devon Homes Ltd v Brazier Queen’s Bench Division (David Steel J) 28 March 2003.
Mark Treneer (instructed by Trowers & Hamlins, of Exeter) appeared for the claimant; John Virgo (instructed by Slee Blackwell, of Exeter) appeared for the defendant.
References: PLS News 8/4/03
