Ever since the Equality Act 2010 (the 2010 Act) became part of English law, public sector landlords have had to deal with the additional burdens placed on them by this well-meaning but loosely drafted statute. Private sector landlords, apart from registered providers of social housing, have by and large chosen not to concern themselves with its provisions, writes James Browne.
However, the growing number of defences to county court possession claims based on disability discrimination being advanced by private sector tenants indicates that the time has come for landlords to wake up and take note.
While most judicial and academic comment has focused on the public sector equality duty set out in section 149 of the 2010 Act (which in the private sector applies only to registered providers of social housing), the main provisions of the 2010 Act apply to all landlords. Failure to comply with obligations under the 2010 Act can result in a possession order being refused, even in mandatory cases such as under section 21 of the Housing Act 1988.
In brief, the 2010 Act specifies certain protected characteristics including age, disability, marital status, race, gender and sexual orientation. The aim of the statute is to prevent discrimination on any of these grounds. While all are potentially relevant to an assured shorthold tenant, the characteristic that is relied on most often in defences to possession claims is disability.
Disability discrimination
Disability is defined in section 6 as a physical or mental impairment which has a substantial and long-term adverse effect on the tenant’s ability to carry out normal day-to-day activities. By section 15, a landlord will discriminate against a disabled tenant if the landlord “treats [the tenant] unfavourably because of something arising in consequence of [the tenant’s] disability”.
It is, however, a defence for the landlord to show that it did not know and could not reasonably have been expected to know that the tenant had the disability. It is also a defence for the landlord to show that eviction is nonetheless a “proportionate means of achieving a legitimate aim”. By section 35, evicting a person with a protected characteristic is identified as potentially unlawful discrimination.
The tenant will normally be able to prove that they are disabled by means of a medical report or a letter from their GP. Landlords should be mindful that district judges, faced with tenants alleging at the first hearing of a possession claim that they are disabled without having written proof, are routinely adjourning possession claims to allow the tenant to obtain proof.
Equality Act 2010 checklist
Key considerations for private sector landlords seeking possession:
■ Is the tenant obviously disabled?
■ Were you or your agent
told of any possibility of a disability by the tenant or a third party before the agreement was signed or afterwards?
■ Why are you seeking possession?
■ Is there any step short of taking possession that would achieve your aims?
■ Have you communicated your reasons for seeking possession to the tenant and allowed them to make any representations they wish to make?
■ Keep a clear written record of all relevant communication concerning a tenant’s disability and its effect on their tenancy.
Assuming the tenant satisfies the court that they are disabled, the inquiry then moves on to the question of the connection between the disability and the possession claim. Section 15 requires the unfavourable treatment – ie the claim for possession – to have arisen “in consequence of… the disability”. Provided the tenant can show that there is some connection between the disability and the possession claim then the test is satisfied.
For example, a tenant can show that mental illness is a cause of anti-social behaviour, or demonstrate that depression is an important factor in the failure to manage finances and thus pay rent.
The landlord may be able to show that it was unaware of the disability. In some cases the disability will be obvious – if for example the tenant is confined to a wheelchair, is blind or is an amputee. Landlords should always check their records to see if at any stage during the tenancy they have been told something by the tenant or by someone acting for them which might indicate that there is a disability.
Proportionality
In most cases where the tenant can show that the possession claim is prima facie discriminatory, then the landlord’s best course is to prove that its actions are a “proportionate means of achieving a legitimate aim”.
In Aster Communities Ltd (formerly Flourish Homes Ltd) v Akerman-Livingstone [2015] UKSC 15; [2015] EGLR 39 Lord Wilson set out a four-stage test. The first question is: what are the landlord’s aims and objectives? These could include vindication of property rights, recovery of rent owing and protection of neighbours. The second question is whether there is a rational connection between the landlord’s objectives and the possession claim. The third is whether the eviction is no more than is necessary to achieve those objectives. In such a case, the landlord would need to show that there was no other realistic alternative to seeking possession. Fourthly, does the eviction strike a fair balance between the landlord’s need to achieve its objectives and the disadvantages caused to the tenant as a disabled person?
It will be clear that, where the tenant can demonstrate that (i) they are disabled; (ii) the landlord either did know about the disability or ought to have known; and (iii) there is a connection between the disability and the reason for bringing a possession claim, the mandatory grounds for possession in the Housing Act 1988 become in effect, discretionary.
Further, it was decided in Aster that a judge should not normally deal summarily with a defence based on discrimination under the 2010 Act. Whereas courts are encouraged to deal summarily with defences under the Human Rights Act 1998, the more complex tests under the 2010 Act and the need for evidence to be heard will usually mean that some form of trial will be required. This will mean a longer wait for landlords to obtain vacant possession, and, in many cases, higher up-front legal costs.
Private sector landlords can no longer afford to assume that the Equality Act 2010 is only a matter for the public sector.
James Browne is a barrister at Lamb Chambers
