Supreme Court agrees to hear case on eviction and disability discrimination

The Supreme Court has issued a last-minute order to prevent the eviction of a disabled social housing tenant.

Jonathan Akerman-Livingstone, who has severe prolonged duress stress disorder, was housed temporarily by Mendip District Council with housing association Aster Communities.

After he failed to choose between properties offered for permanent accommodation when the temporary accommodation was needed for other homeless people, the council required Aster to take proceedings to evict him.

Akerman-Livingstone argued he was unable to make such a decision due to his disability and that the eviction therefore amounted to discrimination against him in breach of section 15 of the Equality Act 2010.

But the Court of Appeal rejected this argument when he appealed against an initial court order to evict him.

Lady Justice Arden said the question was whether the court in possession proceedings should approach a defence based on disability discrimination in the same way as it would approach one based on Article 8 of the Convention, and if so whether the judge correctly applied this approach.

The Court of Appeal judge said: “In my judgment, the judge was correct to hold that he should consider whether Mr Akerman-Livingstone’s defence was seriously arguable, as he would have done if the defence had been based on Article 8, and he was correct to conclude that it was not seriously arguable for the following reasons:

i) There are differences between the two defences but in each of them the court is concerned with the proportionality exercise.

ii) The countervailing interest of the social landlord in obtaining possession will outweigh that of the defendant who relies on disability discrimination in most, but not all, cases.

iii) Contrary to the submissions of Mr Akerman-Livingstone, Civil Procedure Rule (“CPR”) 55.8 enables the court to dispose of the matter without a full trial.

iv) No distinction can be drawn between a possession claim brought by a LHA and one brought by a housing association which is a social landlord.

v) On the facts of this case, the circumstances of Mr Akerman-Livingstone’s case, if proved in all respects, would not outweigh the strength of the countervailing interest of Aster, and so the trial judge was right to dismiss it summarily.”

The Court of Appeal refused to grant a stay of the possession order. It pointed out that if Akerman-Livingstone was evicted, the local housing authority would continue to owe him the duty set out in section 190 of the Housing Act 1996.

The court also noted the head lessor of the block of flats had found a purchaser and required vacant possession; and that the proceedings had been ongoing since September 2011.

The following day - the final day of the legal year – Akerman-Livingtsone’s legal team (at Shelter and Garden Court Chambers) successfully applied to the Supreme Court for permission to appeal and a stay of the eviction order until the appeal can be heard in November.

Mark Smulian