Possession and mental health

Mental health issues represent perhaps one of the greatest challenges in a social housing context when possession is sought, writes Jim Tindal. Officers and lawyers (on both sides) will be acutely aware of the need to balance on one hand fairness to and the needs of an individual vulnerable tenant who may have limited insight and independence, and on the other the effect that tenant’s conduct or needs can have upon neighbours and the social landlords’ staff and resources.

Generally, a landlord will be well-advised to start with an investigation and assessment of the tenant’s mental health and how it may impact on their behaviour. If it is possible to find a way of resolving the conduct that is causing concern with appropriate support, that will be the best outcome for both sides. If not, then the landlord will be better prepared to address the likely arguments against possession.

It will also be important to ensure that relevant policies and procedures are followed (see later). In particular it may be helpful to consider whether the tenant is ‘disabled’ under the Disability Discrimination Act 1995 (‘DDA’): “…a person has a disability if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”

In Manchester CC v Romano [2004] HLR 47 (CA) it was observed that “relevant day-to-day activities” included “memory or ability to concentrate, learn or understand” and “perception of the risk of physical danger” could include the inability of a tenant to learn how to cope with stress and act appropriately or risk to oneself through lack of self-care and to others from anti-social behaviour. Likewise, as confirmed in Malcolm v Lewisham LBC [2008] HLR 41 (HL), “substantial” means “more than minor or trivial” and is a “rather low threshold”.

“Disability” as a whole is likely to apply in many cases, and must be distinguished from the far rarer “mental incapacity” where someone is not capable of understanding court proceedings even with expert advice, which would require a litigation friend – Floyd v S [2008] 1 WLR 1274 (CA). However, if it is not possible to resolve the concern and possession is still desired, there is an important difference between tenants with and without security of tenure.

If the tenant has security of tenure in the sense that a court must be satisfied that it is “reasonable” to grant possession (e.g. secure and assured tenants), the key issue when determining whether to postpone will normally be whether there is medical explanation for the conduct under scrutiny and a realistic prospect of improvement – Croydon LBC v Moody (1999) 31 HLR 738 (CA). Where there is, that optimistic prospect can justify postponement even if there has been very serious past conduct (e.g. sexual harassment in Sheffield CC v Shaw [2007] HLR 25 (CA)). If there is no real basis for optimism, an outright order may be appropriate even where there has been a modest reduction in nuisance – Accent Pearless v Kingsdon [2007] Env LR 25 (CA).

If the tenant does not have security, possession will normally follow, subject to three considerations. First, the prospect of addressing the ground of possession with support (e.g. reducing rent arrears) could (but not necessarily will) justify an adjournment if the issue of disability is squarely raised and if there are “exceptional circumstances”, not simply run-of-the-mill problems e.g. delayed housing benefit – S v Floyd.

Second, the tenant has a defence if possession would amount to disability discrimination, although that will be rare – Malcolm. At present, there are two main types, which can both still be justified in limited circumstances as discussed in Romano (including effect on neighbours):

1. Under s.24 DDA, treating a disabled person less favourably than a non-disabled person in the same circumstances ‘for a reason related to a disability’ i.e. in other words seeking repossession because they are disabled rather than because of their conduct – Malcolm.
2. Under s.24A DDA, failing to take “reasonable steps” (not including physical alterations) to stop a practice, policy or procedure or term of the tenancy from making it “impossible or unreasonably difficult” for the disabled occupier to enjoy the premises. This could cover repossession for breach of covenant if it is “unreasonably difficult” for the tenant to comply, although that will be rare and does not require the landlord to breach its own lease (e.g. “no animals”) – Thomas-Ashley v Drum HA [2010] L&TR 17 (CA).

However, whilst the DDA may therefore be of limited relevance at present, that will change if and when the Equality Act 2010 comes into force. The position of the coalition government on this last act of the Labour administration is not yet really clear. Section 15 of the Equality Act would prevent possession based on disability-related conduct not just disability as such – reversing Malcolm, and s.19  may make it easier to establish “indirect discrimination” (i.e. greater impact of neutral policy on disabled people) as in Thomas-Ashley.

Finally, even if it is not possible to resolve the problem with an adjournment and there is no DDA defence (which is likely to be the case at present), there may be a public law defence. Even if the conduct said to justify possession is serious it may be “irrational” for a landlord to fail to follow its own policies on possession affecting disabled tenants if possession would have serious consequences for their health – Barber v Croydon LBC [2010] NPC 17 (CA). However, whilst this argument could be used by those housed under the homelessness provisions, there is present uncertainty over whether it could be a defence (as opposed to a ground of judicial review) for those on introductory or demoted tenancies – see Manchester CC v Pinnock [2010] HLR 7 (CA) (pending hearing by the Supreme Court).

Whilst, at least at present, the DDA does not represent a formidable barrier to possession, that may well change and the current possibility of other defences suggests caution. The lesson of Barber is that social landlords frequently have policies to deal with problems caused by and suffered by disabled tenants and should compose and follow them carefully and conscientiously.

Jim Tindal is a barrister at St Philips Chambers in Birmingham (www.st-philips.com).