Swan Housing Association Ltd v Gill

Housing – Anti-social behaviour injunction – Appellant landlord seeking ASBI injunction against respondent tenant under sections 153A and 153D of Housing Act 1996 – Judge refusing injunction after finding that respondent suffering from Asperger’s syndrome and that appellant failing to have due regard to that disability contrary to sections 35 and 149 of Equality Act 2010 – Whether judge erring in finding existence of disability in absence of evidence on that issue – Whether erring in approach to public sector equality duty under section 149 of 2010 Act – Appeal allowed The respondent was the assured tenant of the ground-floor flat in a converted house under a tenancy granted by the appellant housing association. In June 2011, the appellant applied for an anti-social behaviour injunction against the respondent, pursuant to sections 153A and 153D of the Housing Act 1996, seeking to require him to: (i) remove a gazebo and greenhouses that were trespassing on the garden of the first-floor flat and on a passageway; (ii) reinstate fencing; (iii) refrain from interfering with the communal door or otherwise preventing the occupants of the first-floor flat from using the entrance; (v) refrain from using the premises for business purposes; and (vi) remove a CCTV camera installed without the appellant’s permission. The respondent’s request for an adjournment, pending the outcome of an application to the Land Registry to determine an adverse possession claim that he raised in his defence, was refused in the county court but the High Court determined on appeal that such an adjournment should have been granted: see [2012] EWHC 3129 (QB); [2013] 1 EGLR 69; [2013] 5 EG 98. The Land Registry application was determined against the respondent. At a subsequent hearing of the injunction application, the judge found that the respondent’s conduct on its face justified the grant of that relief. However, the judge found, by reference to a medical dictionary, that the respondent suffered from Asperger’s syndrome in light of certain traits that he displayed which were consistent with that diagnosis. The judge proceeded to find that the appellant had failed to have due regard to the respondent’s disability, had discriminated against him contrary to section 35 of the Equality Act 2010 and had failed to comply with the public sector equality duty under section 149. He held that the court would be failing in its own section 149 duty if it granted the injunction and he dismissed the application accordingly. The appellant appealed, contending that the judge had erred in basing his decision on disability grounds that the respondent had not himself advanced until prompted to do so by the judge and that were entirely unsupported by any proper evidence. On the appeal, the respondent accepted that he was not disabled and that the judge had therefore erred in relation to section 35. However, he contended that the judge was none the less correct in his conclusions on the section 149 duty, which did not require proof of the existence of a protected characteristic such as a disability but arose where there was a likelihood or real possibility that the respondent was disabled. Held: The appeal was allowed. (1) The judge’s exercise of discretion was vitiated by a number of legal errors. First, he had found that the respondent had a disability, and hence a protected characteristic, even though that had not been pleaded, alleged or proved by evidence. It was not open to the judge to find, without any medical evidence before him, that the respondent suffered from a disability falling within the 2910 Act. It followed that the judge had also erred in finding that there was any question of the appellant, as the manager of premises, having breached its duty under section 35 not to discriminate. (2) The judge had also erred in his approach to section 149 of the 2010 Act. First, he had been under a misconception that the court itself was subject to a public sector equality duty under section 149. That was wrong since section 149 did not apply to a judicial function. He had also erred in finding that the appellant had breached the section 149 duty. The duty was not engaged by the mere likelihood that a disability existed. The list of protected characteristic was such that everyone had at least three, namely age, race and sex, but that was a far cry from reliance on the public sector equality duty in a particular case. Further, the “likelihood” of a protected characteristic was not relevant in dealing with whether a breach had taken place in the past in relation to a particular case and did not arise where, on the proven facts, there was no protected characteristic. What was relevant were actual protected characteristics arising in the exercise of public functions, not possible protected characteristics: R (on the application of Greenwich Community Law Centre) v Greenwich London Borough Council [2010] EWCA Civ 496 and Pieretti v Enfield London Borough Council [2010] EWCA Civ 1104; [2011] 2 All ER 642 distinguished. Since the respondent did not have a relevant protected characteristic, the appellant could not be said to have failed to have due regard to the need to eliminate conduct prohibited by the Act; or the need to advance equality of opportunity between person who shared a relevant protected characteristic and persons who did not; or the need to foster good relations between such persons. (3) Although section 153A(2) of the 1996 Act gave the court a broad discretion to take into account all the circumstances when considering the grant of an injunction, there was no evidential basis to justify the court in taking the respondent’s mental health into account in a general way in the absence of any disability. In order to form part of any arguments against the grant of an injunction, proper medical evidence would be required on the issue of the respondent’s alleged Asperger’s syndrome and its extent and effect. Since the judge would have granted the injunction but for his belief that there had been a breach of the 2010 Act, the appropriate course was to grant the injunction on the appeal. Andrew Lane (instructed by Batchelors) appeared for the appellant; Jonathan Manning and Rebecca Chan (instructed by Chennells, of Westcliff-on-Sea) appeared for the respondent. Sally Dobson, barrister