Disability discrimination and possession proceedings

Background

Paragon Asra Housing Limited (“the Appellant”) is a provider of social housing. Mr Neville (“the Respondent”) was an assured tenant of the Appellant. Under Clause 3 of the Respondent’s tenancy agreement there were a number of- quite standard – obligations. These included:

– barring him from using the flat for illegal or immoral purposes;
– causing nuisance to others in the neighbourhood or to any tenant of the Appellant;
– committing any form of racial harassment;
– playing sound reproduction equipment so loudly as to cause a nuisance to others in the neighbourhood or to be heard outside his flat.

In 2015, a notice seeking possession pursuant to section 8 of the 1988 Act was served on the Respondent. Reliance was placed on discretionary Grounds 12 and 14 in Schedule 2 to the Act. Ground 12 provides that the court may order possession if any obligation of the tenancy (other than one related to the payment of rent) has been broken; and Ground 14 provides that the court may order possession if the tenant has been guilty of anti-social conduct of the like nature as that which the clause 3 obligations proscribed. Possession proceedings were issued.

Before the court the Respondent admitted to numerous breaches. The Respondent submitted he was disabled as defined by s.6 of the Equality Act 2010 and the breaches were as a result of his disability.

In short, it was acknowledged that due to the Respondent’s admissions, the Appellant had proved Grounds 12 and 14 of Schedule 2 to the 1988 Act. Notwithstanding this the Respondent relied on the protection of section 7(4) and contended that it would not be reasonable to order possession. The Respondent set out to the court that he was the victim of discrimination by the Appellant due to his mental health problems and also highlighted his vulnerability.

Suspended Possession Order

In April 2016 the matter came before DJ Smart. By consent an order was made which recorded that the DJ found Grounds 12 and 14 satisfied. The Respondent admitted he had breached the tenancy agreement. The Appellant accepted that the Respondent had a protected characteristic for the purposes of the Equality Act 2010. In all the circumstances it was found reasonable to make a possession order but reasonable and appropriate to suspend such order on the terms that the Respondent “commits no material breach and abides by the terms and conditions of the tenancy agreement … concerning anti- social behaviour and in particular the following clauses”. Importantly DJ Smart was satisfied that the proceedings, and the suspended possession order, did not amount to disability discrimination.

Stay/ Suspend the Warrant

Almost immediately further breaches of the suspended possession order were alleged. The Appellant obtained the issue of a warrant for the execution of the possession order and the Respondent applied to suspend or stay the warrant. In November 2016 the matter went before DJ King. On this occasion DJ King stated that the original suspended possession order had determined that there was no discrimination against the Respondent due to his disability. That is because they were ‘a proportionate means of achieving a legitimate aim’ for the purposes of section 15(1)(b) of the Equality Act. DJ agreed with the Appellant’s arguments that unless there had been a material change of relevant circumstances affecting the Respondent, the enforcement of the suspended possession order, following further breaches would not discriminate against him.  Ultimately, a decision to evict might be unfavourable- as it would to any person- but was not discriminatory. DJ refused the Respondent’s application.

Permission to appeal

The Respondent was given permission to appeal which, was heard by Mr Recorder Williamson QC, on 7 April 2017. Mr Recorder Williamson adopted and incorporated the Supreme Court’s decision in the case of Akerman-Livingston v. Aster Communities Limited [2015] UKSC 15, [2015] AC 1399. The appeal was allowed with Mr Recorder Williamson giving judgment that: even though the court determined that the suspended order for possession was not discriminatory, it nevertheless had, of its own motion, to reconsider the same question at the point when such an order came to be enforced.

Court of Appeal

The decision was appealed. In his judgment Sir Colin Rimer stated:

when making the possession order, the court has undertaken the relevant proportionality inquiry. It has satisfied itself that possession must be given and that, if it is not, the order can lawfully be enforced. The order is binding between the parties. The tenant can have no right, absent any relevant change of circumstances, to require the court to re-consider the same question upon the landlord’s claim to enforce the order. The recognition of such a right would be a recipe for repeated applications of a vexatious nature. There is no such right.”

The appeal was allowed and restored the ruling of DJ King of 7 November 2016 dismissing the Respondent’s application to suspend the warrant.

Conclusion

Where arguments about discrimination due to disability have been considered in the making of a possession order, the court need not reconsider such arguments when it is deciding whether to enforce that order. However, if there has been a material change in circumstances then the court will have to re-consider the section 15(1)(b) proportionality inquiry.

Possession under Grounds 12 and 14 almost always concern the involvement of third parties, some of whom are children, elderly or vulnerable. In cases where, quite serious, breaches of the tenancy agreement and/or anti-social behaviour are alleged (with strong evidence/ admissions) any landlord (but particularly social housing landlords) should be cautious when consenting to an order for possession to be suspended.  The impact of the tenant’s behaviour on those living in close proximity to them, should be carefully considered. This was certainly considered in detail by DJ King.

Whilst discrimination under the Equality Act must be looked at by the court and closely monitored, it is only right to weigh in the balance the effect of such behaviour on other innocent parties.