Supreme Court sets out approach to disability discrimination defences in evictions

A judge hearing an eviction case misdirected himself in adopting the same approach to the defence of disability discrimination as to an alleged breach of Article 8 of the European Court of Human Rights, the Supreme Court has ruled.

At issue in Akerman-Livingstone v Aster Communities Limited (formerly Flourish Homes Limited) [2015] UKSC 15 was the proper approach of the courts when a defendant to a claim for possession of his home raises a defence of unlawful discrimination by the landlord, contrary to the Equality Act 2010.

The appellant was a 47-year-old man with chronic and severe mental ill health amounting to a disability for the purposes of the 2010 Act.

Akerman-Livingstone became homeless in 2010 and under the Housing Act 1996 the local housing authority (Mendip District Council) was under a duty to secure accommodation for him. That duty would cease if he refused an offer of suitable accommodation elsewhere.

The appellant was placed temporarily in a flat in a building in Glastonbury leased by Aster Communities, a housing association, and numerous attempts were made to find an acceptable home for his permanent occupation over the next nine months.

Akerman-Livingstone refused them all so in April 2011 Mendip notified him that the duty to house him had been discharged. Aster Communities then served notice on him to quit the flat and issued a claim for possession.

The appellant’s defence was that a possession order would:

1. amount to disability discrimination; and
2. breach his Article 8 ECHR rights.

The defence was supported by medical evidence of Akerman-Livingstone’s vulnerability and need for intensive therapy.

During the course of the proceedings Mendip came under a duty to house him again after the appellant made a fresh homelessness application in December 2011.

The duty ended after he was offered, but refused, an offer of a property in the same road as the flat, in which he was still living.

Aster Communities applied to reinstate the proceedings and a preliminary hearing took place in June 2013 in the Bristol County Court to decide whether or not the appellant could raise his defence.

Judge Denyer took the same approach to both grounds and held summarily that neither defence was arguable. Akerman-Livingstone’s appeals from this decision were dismissed.

In May 2014 the freeholder of the building in which the appellant had his flat served notice to quit on Aster Communities. The respondent is therefore now in breach of its legal obligation to give vacant possession of the flat so that the building can be sold.

In a ruling handed down today, the Supreme Court unanimously dismissed Akerman’s appeal.

The judges ruled that Judge Denyer had misdirected himself. However, they also concluded that supervening events meant that the matter should not be remitted to the court below, as an order for possession was now inevitable.

The Supreme Court noted that a complaint of disability discrimination under s 15 of the 2010 Act in response to an eviction raised two key questions:

1. Whether the eviction was “because of something arising in consequence of” the complainant’s disability; and
2. Whether the landlord could show that the eviction was a proportionate means of achieving a legitimate aim.

Lady Hale set out the principles in relation to a defence under Article 8 ECHR. In this regard, a court considering whether an eviction was proportionate when such a defence was raised could assume that an order would meet the legitimate aims of vindicating a local authority’s property rights and of enabling the authority to comply with its statutory duties in the allocation and management of the housing stock available to it.

“In virtually every case there will be a strong case for saying that the possession order would be a proportionate means of achieving those aims,” Lady Hale said.

As a general rule a defence under Article 8 ECHR should therefore be considered summarily and only be allowed under to proceed if it crossed the high threshold of being seriously arguable.

The Supreme Court concluded, however, that the substantive right to equal treatment protected by the Equality Act 2010 was different from and extra to the Article 8 right:

• It applied to private as well as public landlords;
• It prohibited discriminatory treatment, for example, by evicting a black person where a white person would not be evicted; and
• It granted additional rights to disabled people to reasonable adjustments to meet their particular needs.

Lord Neuberger said the protection afforded by s 35(1)(b) of the 2010 Act was “plainly stronger” than that given by Article 8.

Lady Hale said that once facts were established that could give rise to a discrimination defence, the burden shifted to the landlord to prove otherwise. The landlord would need to show that there were no less drastic means available and that the effect on the occupier was outweighed by the advantages.

She added that there might be cases where a discrimination defence was so lacking in substance that summary disposal was merited.

Lady Hale agreed with Lord Neuberger, who said that possession could be ordered summarily if the landlord could establish that:

1. The defendant had no real prospect of establishing that he was under a disability;
2. In any event, it was plain that possession was not being sought “because of something arising in consequence of [the] disability”; or
3. In any event, the claim and its enforcement plainly represented “a proportionate means of achieving a legitimate aim”.

Lady Hale said in possession actions generally, and in discrimination cases in particular, the role of the court was not akin to judicial review – the court had to undertake the proportionality exercise itself.

Judge Denyer had wrongly considered the proportionality exercise under s. 15 of the 2010 Act to be the same as the proportionality exercise under Article 8.

The Supreme Court dismissed the appeal, however. Lord Wilson said the full trial “would inevitably result in a further order for possession against the defendant”.

He noted amongst other things that Aster Communities was in breach of its obligations to give vacant possession and was at risk of a claim for damages from the freeholder.

Akerman-Livingstone had also refused suitable accommodation in the same street, and it was unclear whether he had undergone the therapy considered necessary for him to accept the need for change.

Lord Wilson added that in light of the facts his view was “that, no doubt with the utmost reluctance, the judge at any full trial of the action would feel bound to conclude that the eviction would strike a fair balance between the claimant’s need to accomplish its objectives and the disadvantages thereby caused to the defendant; that therefore the eviction would be a proportionate means of achieving a legitimate aim; and that, by securing his eviction, the claimant would therefore not be discriminating against him”.

As a postscript Lord Wilson added that it would “not even be a kindness to the defendant to prolong the current action by a remission of it for a full trial of which the result is a foregone conclusion”.