On 11 March 2015, the Supreme Court handed down their judgment in the case of Akerman-Livingstone v Aster Communities Limited (formerly Flourish Homes Limited) UKSC 15.
The judgment had been eagerly anticipated by Local Authorities (“LA”) and Registered Providers of social housing (“RPs”) as the question the court had been asked to consider was of significant relevance to an RP’s ability to successfully defeat a defence to a possession claim of disability discrimination against a tenant contrary to the Equality Act 2010 (“the EA”).
In particular, the court had been asked to consider whether a defence pursuant to the EA could be dealt with in the same way as a defence alleging a breach of the tenant’s rights under Article 8 of the ECHR (rights in respect of the home), namely on a summary basis by applying the principles laid down in the well-known cases of Pinnock and Powell.
The appellant (“A-L”) is a 47 year old man who suffers from severe mental health problems which amounted to a disability for the purposes of the EA. A-L became homeless in 2010 and the LA accepted it owed him a duty to provide temporary accommodation at that time. A-L was therefore placed in a flat leased by the respondent housing association (“R”) as part of an arrangement between R and the LA in fulfilment of the local authority’s duty. However, that duty would cease if A-L refused an offer of suitable accommodation elsewhere.
A-L was then offered a number of properties for his permanent occupation over the next 9 months but refused them all. Accordingly, in April 2011, the LA discharged its duty to house A-L and, on the LA’s instruction, R served a NTQ on him and issued a claim for possession upon its expiry. A-L defended the claim on the basis that the making of a possession order would (i) amount to disability discrimination against him as his refusal of the properties had been as a result of his disability and (ii) would breach his Article 8 rights.
Before that claim could be determined, A-L made a further homelessness application to the LA in December 2011, the result of which was that they came under a duty to house him again. However, that duty also came to an end when A-L was offered and refused a property in the same road as the one he was already residing in. R therefore applied to re-instate the proceedings which had been stayed and a preliminary hearing on the specific issue of whether A-L was able to bring his defence to the claim on the grounds pleaded was heard in June 2013.
The judge at that hearing took the same legislative approach to both the disability discrimination and the Article 8 grounds of A-L’s defence and held on a summary basis that neither was arguable. A-L’s appeal to the High Court and Court of Appeal were dismissed and the matter was remitted to the Supreme Court for a hearing in December 2014.
In May 2014, the freeholder of the building in which A-L’s property is situated served notice to quit on R. Accordingly, R was in breach of its legal obligation to give up vacant possession to the freeholder for as long as A-L remained in occupation.
Equality Act Defences to Possession Claims
The EA defines what is meant by discrimination and then defines in what circumstances such discrimination is unlawful. It is disability discrimination which is most often invoked in possession claims and there are specific sections of the EA that deal with disability discrimination.
Section 15 of the EA states that:
(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in consequence of B’s disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim…
Section 35 of the EA states:
(1) A person (A) who manages premises must not discriminate against a person (B) who occupies the premises…
(b) by evicting B (or taking steps for the purpose of securing B’s eviction);
Thus, a defendant who is disabled for the purposes of the EA can argue that the bringing of the claim for possession against him is discrimination arising out of his disability (e.g. if a defendant’s disability leads to him causing ASB which is the reason for seeking possession) as it may result in eviction. When such a defence is brought, the court has to answer two questions:
1. Whether the claim is actually being brought because of something arising in consequence of D’s disability; and if so
2. Can the landlord show that eviction is a proportionate means of achieving a legitimate aim?
If the landlord cannot show this, then the claim is discriminatory and a possession order cannot be made.
Article 8 Defences to Possession Claims
Article 8 of the ECHR states that everyone has the right to respect for his private and family life, his home and his correspondence. However, interference with a person’s Article 8 rights is permitted as long as it is “proportionate”. Thus, it is possible for a defendant to a claim for possession brought on mandatory grounds (i.e. where the defendant has no right to occupy the property in domestic law) to argue that, despite the lack of right to occupy, the making of a possession order would interfere with their Article 8 rights in such a disproportionate manner that it is therefore unlawful.
The question the court therefore has to answer when such a defence is raised is whether the making of a possession order is proportionate. The Supreme Court decisions in Pinnock and Powell provided detailed guidance as to how courts should address this question. Crucially, it was held that, when a social landlord brings a claim for possession, it is a “given” that the so-called “twin aims” of a landlord (1) exercising its property rights and (2) complying with its duties as to the allocation and management of its stock are always legitimate aims.
As such, there is almost always a strong presumption that the making of a possession order is proportionate. As a general rule, therefore, Article 8 should only be considered if it is expressly raised by the occupier and should initially be considered on a summary basis and only be allowed to proceed if it is seriously arguable were all the facts made out.
The decisions of the lower courts
A-L was attempting to defend the possession claim on the basis that it would amount to (1) disability discrimination against him and (2) a breach of his Article 8 rights on the basis that he refused the alternative properties as a result of his disability and not for any other reason. The courts below took the view that, although the rights conferred in Article 8 and Section 15 of the EA are different, they are not sufficiently different to require a different approach to evictions in social housing claims. They both concern the court asking itself whether the making of the possession order is a proportionate means of achieving a legitimate aim.
As such, they held that the guidance laid down in Pinnock and Powell is applicable to EA discrimination defences in the same way as it is to Article 8 defences, namely that they can be dealt with summarily and that the twin aims are in most cases “overwhelming” meaning the disabled tenant would have to show they have some “considerable hardship they cannot be expected to bear” to defeat them.
Applying this to the case in hand, they found that the personal circumstances of A-L did not defeat the twin aims and therefore his defence was found not to be arguable.
Decision of the Supreme Court
In a unanimous decision, the Supreme Court dismissed the appeal brought by AL. However, the court confirmed that this result was solely due to the supervening facts of the case (namely that the freeholder had served notice to quit on R making it inevitable that a possession order would be made if the case was remitted). But for those facts, the appeal would have been allowed as the lower court had misdirected itself in adopting the same approach to the defence of disability discrimination as to a defence of breach of Article 8.
In the leading judgment, Lady Hale highlighted that the substantive right to equal treatment protected by the EA is different from and extra to the Article 8 right. The EA applies to both private and public landlords whereas Article 8 only applies to public authorities acting as landlords (LAs and RPs for these purposes). As such, it “simply does not follow that, because those twin aims trump any right to respect that is due to the occupier’s home, they will also trump the occupier’s equality rights”.
The protections afforded to individuals by the EA are plainly stronger than those given by Article 8 and therefore the court, when considering the issue of proportionality when such defences are raised, must apply the more “structured approach” to proportionality which asks whether there were no less drastic means available to the landlord to that which it took. This is a different and more involved test to that for Article 8.
However, the court held that the above does not preclude a landlord from seeking and obtaining summary judgment where a disability discrimination case is raised if it could show (i) the defendant was not disabled or (ii) possession was not being sought because of something arising as a result of the disability or (iii) the claim was clearly a proportionate means of achieving a legitimate aim. However, the court did concede that, in practice, this may be difficult because these three issues are likely to involve substantial disputes of fact that require exploration at all full trial. Accordingly, there should be no presumption that these matters are fit to be dealt with summarily.
The judgment makes it clear that judges will have to apply a different approach to proportionality when unlawful discrimination defences are raised to the one they already apply to Article 8 defences. Unfortunately, it seems that this more involved approach will lead, in practice, to few of these defences being dealt with on a summary basis which happens on a relatively frequent basis in Article 8 cases at this time.
From a practical perspective, social housing providers should ensure that they put defendants who claim to be disabled for the purposes of the EA under pressure to provide cogent medical evidence of such disability at an early stage of proceedings as, if the defendant fails to do so, a landlord may have some success in arguing that the discrimination defence be dealt with summarily on the basis that the defendant has failed to show they are disabled for the purposes of the EA.
Some thought too should be given to social landlords developing a separate, specific proportionality checklist from that used for Article 8 proportionality for staff to use when dealing with tenants who are, or may be, disabled for the purposes of the EA.
For more information, please contact:
Mark Foxcroft, Solicitor
020 7065 1861