Tenants win High Court appeal against housing association over possession order

Two tenants have resisted an attempt to evict them for anti-social behaviour, with the High Court referring the matter back to the County Court.

The case before Mr Justice Kerr was between the appellants/defendants and Bromford Housing Association.

A possession order was made against the appellants in March 2022 after numerous incidents of anti-social behaviour and complaints of criminal behaviour by the family from neighbours and others, the court heard.

Bromford had in April 2019 served a notice under section 21 of the Housing Act 1988, requiring possession to be given up in June 2019.

Proceedings were then delayed by the pandemic. The county court rejected the defence that evicting the defendants would breach section 15 of the Equality Act 2020 on discrimination arising from disability, as it would unlawfully discriminate against their son by treating him unfavourably because of attention deficit hyperactivity disorder caused him to behave anti-socially.

Bromford denied that it had acted unlawfully because its decision to evict had been made based on the knowledge and information available at the time, when it had not known of the son’s disability.

It said that even if the disability existed, eviction and possession proceedings were and remained “a proportionate means of achieving a legitimate aim in this case”.

Kerr J said the county court judge found the son's anti-social behaviour was a factor in Bromford’s decision to evict but then said service of the notice to quit was "not predominantly as a result of [the son's] behaviour”; it also incorporated the wider analysis of the family and the intimidation felt by neighbours “rather than any of the children”; and “for that reason alone … the Equality Act defence must fail because the service of the … notice is not significantly influenced by any discrimination as a result of Callum's protected characteristic”.

Kerr J said: “The judge's own findings demonstrate that [the son’s] behaviour and disability, in Lord Nicholls' words in Nagarajan [2000] 1 AC 501, at 513B, ‘had a significant influence on the outcome’.

“Where that is so, Lord Nicholls added, ‘discrimination is made out’. The judge's ensuing contrary conclusion is, then, untenable.

“After finding that [the son’s] disability and the behaviour that resulted from it was a factor contributing to the decision to seek possession, the judge then found, inconsistently, that service of the notice seeking possession was not significantly influenced by the behaviour that, everyone agreed, resulted from [the son’s] disability.”

Kerr J found the county court had failed to assess Bromford's justification defence on the basis of the factual position at the time.

He said there was no evidence before the court that any member of the family had behaved badly during the preceding two-year period, whatever may have happened earlier.

Kerr J said: “It was not for [the appellants] to demonstrate by further evidence a change of circumstances since the end of 2019.

“They did not bear the onus of showing that eviction would not be a proportionate means of achieving a legitimate aim. The change of circumstances was the glaring absence of any evidence of misbehaviour after the start of 2020, in contrast to the copious evidence of misbehaviour before the start of 2020.”

He concluded: “I am driven inescapably to the conclusion that the judge did not, contrary to his own self-direction, conduct his proportionality assessment based on the factual position as at the date of trial.”

Mark Smulian