The mandatory ground post Akerman

One year after the Supreme Court ruling in Akerman-Livingstone, whither the ‘new’ mandatory ground for possession? Toby Huggins reports.

“The purpose of the new absolute ground for possession is to speed up the possession process in cases where anti-social behaviour or criminality has been already been proven by another court.”

So says the statutory guidance supporting the Anti-Social Behaviour, Crime and Policing Act 2014[1]. The (relatively!) new absolute (or “mandatory”) ground is, however, subject to any available human rights and disability discrimination defences, and if such a defence is raised social landlords can find that the prospect of speedy resolution speedily disappears.

Just over one year ago the Supreme Court confirmed in Akerman-Livingstone v. Aster Communities Limited [2015] UKSC 15, that the protection afforded to disabled persons by the Equality Act 2010 was stronger and more targeted than the more general protection afforded to tenants by article 8 of the European Convention of Human Rights.

In consequence, per Lady Hale at para 36:

“There may……..be cases where a discrimination defence is so lacking in substance that summary disposal is merited. The test is whether the claim is “genuinely disputed on grounds that appear to be substantial”. I agree with Lord Neuberger (para 59) that the case could be summarily disposed of if the landlord could show (i) that the defendant had no real prospect of proving that he was disabled within the meaning of the Act; or (ii) that it was plain that possession was not being sought because of something arising in consequence of his disability; or (iii) that bringing and enforcing the claim were plainly a proportionate means of achieving a legitimate aim. Like him, I suspect that such cases will be rare…."

Lord Neuberger indeed suspected such cases would be “relatively rare” (para 59).

There is still no authority on whether these remarks apply equally to new mandatory ground cases or whether some qualification is merited. Could it be, for example, that many new mandatory ground cases self-select as the type of rare cases suitable for summary determination envisaged by Lord Neuberger and Lady Hale, even when there is a real prospect that disability may be relevant? Alternatively, is it the case that even new mandatory ground cases will in such circumstances generally only be determined at trial?         

This uncertainty as to which way the court will leap is perhaps felt most acutely when there is a real prospect of a defence of indirect disability discrimination being pleaded under section 15 of the Equality Act 2010, and it is therefore this scenario upon which I focus in this article (I take as read that NOSP and statutory review requirements). I conclude that in such circumstances it is prudent to proceed on the basis that the new mandatory ground will only have real efficacy when the ASB or criminality upon which it is based is of such seriousness that the four stage proportionality test is plainly satisfied.

Mental health issues -> ASB -> Decision to evict indirectly discriminatory

In the context of possession claims such indirect disability discrimination defences commonly assert that the ASB complained of arises from depression or other mental health issues, and that the decision to evict is therefore is unjustified.

Justifying what may be indirect discrimination - complying with the Public Sector Equality Duty (“PSED”)

“A significant factor in determining whether a public authority is able to justify what may be indirect discrimination is the extent to which the authority has complied with their public sector equality duties.”[2]

As is well known, PSED requires a decision-maker exercising a public function to have “due regard” to three aims which can be summarised as 1) eliminating discrimination, 2) advancing equality, and 3) fostering good relations. “Due regard” means the regard that is appropriate in all the circumstances. Its content varies from case to case; it cannot be reduced to a box-ticking exercise; it is a continuing duty, and it involves considering the aims of the Equality Act rigorously, upon sufficient information, with an open mind, both before and at the time the relevant decision is made.

The requirement that the aims of the Equality Act be considered upon sufficient information is of particular importance. A past failure to obtain sufficient equality information cannot be remedied by a last-minute evidence gathering blitz, and may well lead not only to inadvertent indirect discrimination, but also to difficulties in justifying the third and fourth stages of the structured approach to proportionality (see further below).    

It is thus important to remember that addressing the five issues I set out below cannot provide a quick fix to a deficiency of information-gathering. They are intended, however, to provide an overview of important issues to bear in mind when considering eviction on the new mandatory ground.        

Five issues

1) Check written policies

Clearly if relevant written policies point to an alternative course of action, the use of the mandatory ground is inappropriate!

2) Is the ASB of the most serious kind?

The statutory guidance warns that the new mandatory ground should be used selectively, only for the most serious cases of ASB[3]. It cannot be assumed that simply because the statutory criteria are fulfilled, the use of the mandatory ground is appropriate. The point is worth stressing, because if the mandatory ground is used for lesser ASB (for example a relatively minor breach of an injunction), the tenant will stand a very good chance of successfully arguing that the use of the mandatory ground is at least arguably disproportionate

3) Is the tenant is disabled?

If the extent of any disability is unknown or unclear it must be borne in mind that ignorance is no defence if the disability should have been appreciated. Compliance with PSED will be of crucial assistance to decision-makers on this issue. If there is a real prospect that any disability might be relevant to the decision to evict, further enquiries should be made (whether of the tenant, or of any relevant mental health professionals, or otherwise)

4) Does the ASB “arise from” any disability?

This test has been judicially described as “deliciously vague”[4]. The flavour of the causal link is certainly mild, and it is therefore relatively easy to assert at a summary hearing that there is a real prospect of it being satisfied. 

The causal link was recently considered by Laing J. in the Employment Appeal Tribunal case of Hall v. Chief Constable of West Yorkshire Police UKEAT/0057/15 (a non-binding decision, but persuasive). At para 42, Her Ladyship stated that it was not necessary for the cause to be the “sole or main cause”, only for it to have a significant influence or be an effective cause (of the unfavourable treatment). In the context of ASB possession claims the test therefore becomes “is the disability an effective cause of the ASB, or does the disability have a significant influence on the ASB complained of?” Thus, it might be argued, for example, that a tenant’s depression significantly influenced or was an effective cause of drug dependency, which in turn has caused ASB. 

5) Would eviction be proportionate? 

This issue should be approached in structured way, with consideration being given to each of the following four factors: the first two are relatively straightforward; the third and fourth are more subtle.

i) The objectives of eviction.

These will usually fall under the broad headings of 1) vindication of property rights, 2) enabling compliance with duties in relation to management of housing stock 3) removing a source of ASB to neighbours. In article 8 cases, of course, the weight to be accorded to the first two objectives mean that in virtually every case an eviction will be proportionate, but post Akerman-Livingstone, that is emphatically not the case in Equality Act claims. It is therefore necessary that the “removal of nuisance” objective is appropriately cogent and adequately defined. For example, past ASB may have been targeted at a particular individual and have been of such seriousness that the perpetrator’s continued occupation would create distress even if no further acts of nuisance occurred (on this point see para 39 of Lambeth Borough Council v. Howard [2001] EWCA 468; 93 HLR 626). If that is indeed the case then this should be recorded and built into any statement of objectives.   

ii) The existence or otherwise of a rational connection between objective and eviction

Is the eviction likely to achieve the objectives? Unless something has gone very badly wrong indeed the answer to this should be a straightforward “Yes”.

iii) The principle of minimum interference – is the eviction is no more than is necessary to accomplish the objectives? 

At para 31 of Akerman-Livingstone Lady Hale formulates the question is “whether there is any lesser measure which might achieve the landlord’s aims?”, and at para 34 as the need for the landlord to show there is “no less drastic means of solving the problem”. The difficulty of course is that potentially viable but less drastic course of action can almost always be proposed. Clearly if a lesser drastic course is equally practicable and equally likely to achieve the stated aims then it must be taken, but marginal cases may arise, for example where a less drastic course is practicable but is thought less likely to achieve the stated aims. In such a case should the less drastic course nonetheless be taken? The correct answer requires a judgment by the decision-maker as to whether any less drastic course is not only reasonably available in practical terms, but is also reasonably likely to achieve the objectives of eviction

iv) Whether the eviction strike a fair balance between the need for the claimant to accomplish its objectives and the disadvantages thereby caused to the defendant as a disabled person

This stage focuses on the defendant’s personal characteristics and circumstances. The decision-maker must therefore consider these, consider how they may put the tenant at a disadvantage in the event of eviction and, most importantly, must evidence such considerations by writing them down in a note which can be produced to the court if necessary!  

Conclusion

Many social housing tenants suffer from depression and related mental health conditions and at a summary hearing it is often at least arguable that the ASB has been, in the requisite relatively loose sense, connected to that disability.

As a result, where there is evidence of disability which may be relevant to any decision to evict, landlords should avoid placing sole reliance on the new mandatory ground (indeed it is almost invariably a good idea to additionally plead the usual discretionary grounds for possession), and I would propose, as a general rule of thumb, that the mandatory ground is only likely (ultimately) to be of real use when the third of Lady Hale’s scenarios mentioned near the beginning of this Note pertains, which would normally be when the ASB or criminality underlying the chosen mandatory ground is of such unusual serious that, even if indirect discrimination may or does exist, the four stage proportionality test, applied conscientiously and with rigour, is plainly satisfied.

Finally, it is worth always remembering that structured and conscientious decision-making based on all relevant considerations is of absolutely no use if there is no (or inadequate) evidence of it. A written record of the decision-making process is crucial.

Toby Huggins specialises in anti-social behaviour law and is a member of the landlord and tenant team at Unity Street Chambers, Bristol. He can be contacted on 0117 906 9789 or This email address is being protected from spambots. You need JavaScript enabled to view it..