The Supreme Court has ruled on the approach the courts should take when a defendant to a claim for possession of his home raises a defence of unlawful discrimination by the landlord, contrary to the Equality Act 2010.
Though finding that Judge Denyer QC at Bristol County Court had taken the wrong approach to a tenant’s discrimination and human rights defences to a housing association’s possession claim, the Court dismissed his appeal, finding that in the circumstances of the case any rehearing would result in a possession order being made.
Judge Denyer had given summary judgment in favour of the housing association, but the Court ruled that it would only be reletaively rare that such an approach would be appropriate in the event of a defence being raised under the 2010 Act.
Lady Hale, Lord Neuberger and Lord Wilson gave guidance on how defences under the Act and article 8 of the European Convention on Human Rights should be dealt with.
Lady Hale said that a complaint of disability discrimination in response to an eviction raises two key questions: (i) whether the eviction is ‘because of something arising in consequence of’ the complainant’s disability; and (ii) whether the landlord can show that the eviction is a proportionate means of achieving a legitimate aim.
In respect of article 8, she said that in virtually every case there will be a strong case for finding that the possession order would be a proportionate means of achieving the legitimate aims of vindicating a local authority’s property rights and of enabling the authority to comply with its statutory duties in the allocation and management of the housing stock available to it.
She said: “As a general rule, therefore, article 8 should only be considered if it is expressly raised by or on behalf of a residential occupier and initially should be considered summarily and only allowed to proceed if, were the facts alleged to be made out, it might make a difference.”
However, she said that the substantive right to equal treatment protected by the 2010 Act is different from and extra to the Article 8 right: it applies to private as well as public landlords; it prohibits discriminatory treatment, for example, by evicting a black person where a white person would not be evicted; and it grants additional rights to disabled people to reasonable adjustments to meet their particular needs.
In respect of this stronger right, she continued: “Once facts are established that could give rise to a discrimination claim, the burden shifts to the landlord to prove otherwise. This will depend upon the particular type of discrimination alleged.
“If it is a claim (or defence) of direct discrimination, for example that a disabled person has been evicted when a non-disabled person in the same or similar circumstances has not, then the landlord would have to show that the disability was not the reason for the difference in treatment. If it is a claim of indirect discrimination, for example that the landlord has imposed a requirement upon its tenants which puts disabled tenants at a particular disadvantage, then the landlord would have to show that there was a good independent reason for the requirement.
“If it is a claim of disability discrimination under section 15, then the landlord would have to show that there was no less drastic means of solving the problem and that the effect upon the occupier was outweighed by the advantages.”
She said that there may still be cases where a discrimination defence is so lacking in substance that summary disposal is merited, with the test being whether the claim is “genuinely disputed on grounds that appear to be substantial”.
In this case, she said that there were two problems with Judge Denyer’s approach, but that there was no point in allowing the appeal and remitting the matter to the County Court in this case.
She said: “He appears to have regarded his role as akin to the role of the county court judge in homelessness appeals under section 204 of the 1996 Act, in other words, as akin to a judicial review role. It is, however, clear that in possession actions generally, and in discrimination cases in particular, the role of the court is not akin to judicial review. It has to undertake the proportionality exercise itself.
“The second problem is that he regarded the proportionality exercise under section 15 as the same as the proportionality exercise under article 8. For the reasons given earlier, it cannot be exactly the same. While some things can be taken for granted, and some cases may be so clear that summary disposal is warranted, the issues are not all the same.”
In his judgment, Neuberger agreed that a landlord can seek summary judgment for possession in certain section 15 cases, adding: “Possession could be ordered summarily if the landlord could establish that (i) the defendant had no real prospect of establishing that he was under a disability, (ii) in any event, it was plain that possession was not being sought ‘because of something arising in consequence of [the] disability’, or (iii) in any event, the claim and its enforcement plainly represented ‘a proportionate means of achieving a legitimate aim’.”
However, he said that such cases would be “relatively rare”.
Explaining the circumstances that meant that the appeal should not be allowed in this case, Lord Wilson said that a possession order would be inevitable on any rehearing for circumstances including that the freeholder of the building has served a notice to quit that Aster is in breach of, which has prevented the freeholder from proceeding with a proposed sale and leaves Aster vulnerable to a damages claim.
He said: “My view is that, no doubt with the utmost reluctance, the judge at any full trial of the action would feel bound to conclude that the eviction would strike a fair balance between the claimant’s need to accomplish its objectives and the disadvantages thereby caused to the defendant; that therefore the eviction would be a proportionate means of achieving a legitimate aim; and that, by securing his eviction, the claimant would therefore not be discriminating against him.”
The tenant, who suffers chronic and severe mental ill health, amounting to a disability for the purposes of the Equality Act, became homeless in 2010 and was placed by the local authority in a flat in Glastonbury, leased by housing association Aster Communities.
Numerous attempts were made to find an acceptable home for his permanent occupation over the next nine months, but he refused them all and, in April 2011, the local authority notified him that the duty to house him had been discharged. Aster served notice on him to quit the flat and issued the claim for possession.
Akerman-Livingstone v Aster Communities Limited (formerly Flourish Homes Limited) Supreme Court (Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson, Lord Hughes) 11 March 2015
Jan Luba QC, Russell James and Catherine Casserley (Instructed by Shelter Legal Services) for the appellant
Daniel Stilitz QC, Nicholas Grundy and Sara Beecham (Instructed by Clarke Willmott LLP) for the respondent
Monica Carss-Frisk QC and Jason Pobjoy (Instructed by Equality and Human Rights Commission) for the intervener
