In March 2015 the Supreme Court handed down judgment in the case of Aster v Akerman-Livingstone. The case considered the approach to be adopted by the courts when a defendant raises a disability discrimination defence to a summary claim for possession (a claim relying upon a notice to quit, s21 Housing Act 1988 notice, or to terminate an introductory tenancy for example).
Under the Equality Act 2010 a landlord's decision to evict a disabled occupant will not fall foul of the provisions in relation to disability discrimination provided that it is "a proportionate means of achieving a legitimate aim". As this test is identical to that under Article 8 of the European Convention on Human Rights (the right to a family life and home) housing practitioners have approached the test of proportionality in the same way, that is to say that and Equality Act argument on grounds of disability can be dealt with on a summary basis.
The first instance court, High Court and Court of Appeal found that in the context of housing law the approach to both Equality Act and Article 8 defences was the same finding that a structured consideration of the disability discrimination defences was not necessary and that the cases could be dealt with summarily without the need for a fill trial.
The Supreme Court found that the protection granted to a disabled person under the Equality Act was greater than under Article 8 of the European Convention on Human Rights and that the twin aims of vindication of property rights and housing management alone, will not usually be sufficient to establish that the eviction is proportionate and accordingly need to be weighed up in proper exercise to consider proportionality.
In practice the decisions means that where a claim is brought against an occupier with a disability (an that disability has some connection with the claim) the case is likely to have to go to a full trial for the Court to decide whether eviction would be "a proportionate means of achieving a legitimate aim".
The background
Mr Akerman-Livingstone had been diagnosed with Complex Post Traumatic Stress Disorder. His landlord accepted that he was disabled under the meaning of the Equality Act 2010.
In 2010 Mr Akerman-Livingstone became homeless and applied to his local authority for housing. Flourish Homes Ltd which later became Aster Communities Ltd, provided Mr Akerman-Livingstone temporary accommodation under an arrangement with the local authority whilst he went through the bidding process for permanent accommodation. The local authority wrote to Mr Akerman-Livingstone stating that they considered their duty to provide housing discharged after he refused a number of bids on properties. Consequently, Flourish Homes served a notice to quit upon Mr Akerman-Livingstone and issues a claim for possession.
The defence raised three defences – disability discrimination, article 8 and a public law defence based primarily on beach of the public sector equality duty.
The Supreme Court's decision
The Supreme Court held that in the first instance the Judge had misdirected himself as to the correct approach in assuming that a disability discrimination defence could be dealt with in the same way as Article 8 defences. The Supreme Court asserted that the landlord would have to go further to justify the eviction under the Equality Act than would be required under Article 8.
The Supreme Court stated that the following test should be applied in determining whether the landlord's actions were proportionate:
- Is the objective (i.e. the eviction) sufficiently important to justify limiting the occupants fundamental right?
- Are the means rationally connected to the objective?
- Are the means no more than necessary to achieve that objective; and
- Do the ends justify the means?
The Supreme Court highlighted the following circumstances where disability discrimination defences may still be able to be dealt with summarily, where:
- There is no real prospect of the defendant establishing that he or she is disabled
- The possession claim did not arise as a consequence of the defendant's disability; or
- The possession claim is plainly a 'proportionate means of achieving a legitimate aim'.
Of these three exceptions, the third is undoubtedly going to be the hardest to prove on a summary basis. Where there is any doubt the Courts will be listing these cases for full trial.
The Supreme Court stopped short of providing guidance on to what extent general housing policy trumps the needs of the disabled occupant.
Conclusion
Social landlords are likely to not only see an increase in occupants raising disability discrimination defences but also an increase in these defences prolonging possession claims and requiring a trial.
Where it is pre-empted that a defence of disability discrimination could be raised in possession proceedings, social landlords should consider whether the defendant is likely to be deemed disabled under the provisions of the Equality Act and whether the claim has arisen as a consequence of the defendant's disability. If the answer to either of these questions is no, the social landlord may be able to ask for the defence to be dealt with summarily by the Court.
Before issuing possession proceedings social landlords need to ensure that all alternative avenues of resolution have been thoroughly explored and well-documented. When issuing a possession claim against a disabled occupant, the social landlord should also consider the four stage proportionality test, above, in order to flush out any concerns pre-issue. Co-operation and an outward open-mindedness to alternative ways of resolving matters throughout the proceedings will be essential to protecting the social landlord's position.
