Article 8, the Equality Act and summary hearings

How should Article 8 and Equality Act 2010 arguments be treated when raised at a summary hearing? Senga Howells reports on a recent case.

The facts

In Akerman-Livingstone v Aster Communities Mr Akerman-Livingstone (“Mr A”) was a non-secure tenant of Aster Communities Ltd, a housing association. Aster had a contractual relationship with the local authority, Mendip District Council, who had a duty to house Mr A while they considered his homelessness application. Mr A was vulnerable and had a complex post-traumatic stress disorder (PTSD).

Mendip District Council made offers of suitable permanent accommodation, but these were all rejected by Mr A. Because he had rejected the offers, Mendip District Council discharged their homelessness duty and subsequently instructed Aster to serve a notice to quit to terminate Mr A’s non-secure tenancy agreement. Mr A remained at the property and, after the notice to quit expired, Aster commenced possession proceedings.

Mr A sought to defend the possession proceedings on the basis that his Article 8 rights had been infringed and he had been discriminated against by Aster, contrary to s.15 of the Equality Act 2010. 

Mr A filed a fully pleaded defence and obtained expert reports regarding his PTSD from a psychologist. The matter was listed for a two day trial, but prior to the trial Mr A sought to judicially review the council’s decision to discharge their homelessness duty.

Given the possibility of judicial review proceedings, Mendip District Council agreed that they would accept a fresh homelessness application from Mr A and give him the opportunity to bid on further properties. Both parties agreed to adjourn the proceedings generally.

Mr A did not bid on any properties as he had agreed to do. The council then made several offers of accommodation to him (one only metres away from where he was residing).  These were all rejected and, again, the council discharged their duty to Mr A. Mr A did not seek to appeal this decision by way of judicial review in the County Court.

Aster successfully applied to restore its possession proceedings in January 2013 and the matter was set down for a two day summary hearing before His Honour Judge Denyer.

At First Instance

His Honour Judge Denyer, having heard legal submissions from both parties, dismissed both aspects of Mr A’s defence and made an Order requiring Mr A to give possession of the Aster property after 28 days.

Mr A sought permission to appeal on the basis that His Honour Judge Denyer had erred in law by treating the Equality Act defence in the same way as the Article 8 defence. His Honour Judge Denyer gave Mr A permission to appeal, on the narrow technical point of “whether an Equality Act 2010 defence should be treated the same as an Article 8 defence”.

High Court

On 10 October 2013, Mr Justice Cranston heard the appeal in the High Court.

Mr A argued that the approach to Equality Act and Article 8 defences should be different. For example, he argued that there are practical considerations to be taken into account when an Equality Act defence is raised, including the need for medical evidence. Mr A also argued that a structured approach (already taken in non-housing discrimination matters) should be taken in relation to Equality Act defences.

Mr Justice Cranston dismissed the appeal. The accommodation had been provided pursuant to the council’s homeless duty to temporarily house Mr A, and that duty had since ceased. Mr Justice Cranston considered that given Mr A had not sought to challenge the decision to end the homeless duty any further, Aster was entitled to a possession order. 

Mr Justice Cranston also considered the duties of housing authorities in relation to the homeless who are in priority need pursuant to s.193 of Housing Act 1996. He stated that such individuals were in a vulnerable position and seriously affected by homelessness. He made reference to those individuals covered by s189(1) Housing Act 1996 (such as pregnant women and those with dependant children) and stated that while Mr A occupies the property, others who are in need cannot.

... the public authority must demonstrate that pursuing possession is a proportionate means of achieving a legitimate aim

Mr Justice Cranston stated that where defences of both Article 8 and s.15 of the Equality Act are raised, as a matter of law, the onus is on the public authority to show that proceedings are proportionate.

Mr Justice Cranston also noted that the approach must be that taken by Lord Justice Etherton in the case of Thurrock BC v West [2012] EWCA Civ 1435 who stated that for the purposes of summary assessment the facts stated by the defendant are treated as true. In this regard Mr Justice Cranston said a defendant would not be at a disadvantage if they did not have any medical evidence to present at the summary hearing and, in any event, summary assessment could be adjourned for medical evidence to be obtained, if necessary. 

With regard to the structured approach, Mr Justice Cranston stated that the Supreme Court had rejected this in relation to Article 8 defences in the context of housing. Mr Justice Cranston added that where both Article 8 and Equality Act defences are raised, it is a balancing act. 

In this case, Mr Justice Cranston observed that Mr A had rejected all offers of housing made to him and had exhausted his appeal rights regarding the decision made to discharge the duty to house him. Balancing this against the need to provide accommodation to others in vulnerable circumstances, a possession order was a proportionate means of achieving a legitimate aim. Mr Justice Cranston stated that Lord Hope had underlined that the issue of balance is, for social policy reasons, in favour of public authorities.

Mr A subsequently applied to the Court of Appeal for permission to appeal on the basis Mr Justice Cranston erred in law in applying the same test to both Article 8 and Equality Act defences.

Court of Appeal

Mr A has been given permission to appeal and this is due to be heard in early June 2014.

Senga Howells is a Trainee Solicitor at Clarke Willmott. She can be contacted on 0845 209 1574 or This email address is being protected from spambots. You need JavaScript enabled to view it..