30 July 2014*
In a decision of significant practical consequence to social landlords seeking possession on mandatory grounds, the Court of Appeal has held that a defence to possession proceedings based on disability discrimination under the Equality Act 2010 can be dealt with summarily and struck out if not “seriously arguable” in the same way as an Article 8 ‘public law’ defence.
In 2010, Mr Akerman-Livingstone (“A-L”) applied to Mendip District Council for housing as he was homeless. In August 2010, whilst the council considered his homelessness application, it arranged for A-L to be accommodated temporarily by Aster Communities, a housing association, who in turn had leased the accommodation from private landlords under a lease agreement to be used for the purposes of providing temporary accommodation to homeless applicants.
A-L is vulnerable and suffers with prolonged duress stress disorder. The council decided that A-L was homeless and that it owed him a duty to secure accommodation under Part 7 of the Housing Act 1996. The council therefore made a number of offers of what it considered to be suitable accommodation to A-L, all of which he rejected. As the offers were rejected and the council considered them to be suitable, the council considered it was entitled to discharge its main housing duty to A-L. It subsequently instructed Aster to end A-L’s non-secure tenancy agreement and when A-L did not move out, Clarke Willmott LLP were instructed by Aster Communities to commence possession proceedings.
A-L sought to defend the proceedings by alleging that his Article 8 rights had been infringed and that he had been discriminated against by Aster Communities contrary to the Equality Act 2010. During the course of proceedings, A-L threatened to judicially review the council’s decision to discharge its homelessness duty. The council decided to accept a fresh homelessness application from A-L and gave him the opportunity to bid on further properties. It was agreed that the possession proceedings would be adjourned.
During the adjournment, A-L rejected several further offers of suitable alternative accommodation (one being only metres from where he is residing and in the area he expressed he wanted to reside). Again, as the offers had been rejected, the council discharged its main housing duty under Part 7 of the 1996 Act. A-L did not appeal this decision in the county court under s.204 of the Housing Act 1996.
Aster Communities restored its possession proceedings in January 2013 and at two day ‘summary’ hearing, His Honour Judge Denyer decided summarily that A-L did not have a ‘seriously arguable’ case and ordered him to give possession of the property within 28 days. A-L appealed to the High Court, arguing that the matter should proceed to a fully contested trial and should not have been decided summarily. Mr Justice Cranston dismissed A-L’s appeal.
A-L subsequently appealed to the Court of Appeal.
Court of Appeal
Lady Justice Arden delivered the lead judgment (with Lady Justice Black and Lord Justice Briggs agreeing).
The essential question for the court was whether they should approach a disability discrimination defence under the Equality Act 2010 in the same way as an Article 8 defence, or on some other basis. The court found that whilst there are differences between an Article 8 defence and a disability discrimination defence “in each of them the court is concerned with the proportionality exercise”, i.e. are the proceedings and the outcome sought a proportionate means of achieving a legitimate aim? Lady Justice Arden stated “there is no rational basis for saying that the weight to be given to the social landlord’s interest is somehow diminished where the tenant is relying on disability discrimination than where the tenant relies on Article 8”.
The court confirmed that in most, but not all cases, “the countervailing interest of the social landlord in obtaining possession will outweigh that of the defendant who relies on disability discrimination”.
Furthermore, “[w]here, as here, the claimant for possession has an obligation to a housing authority to make its properties available for rent to those persons for whom the housing authority is obliged to find accommodation, it is entitled to rely on the twin aims [as set out inManchester City Council v. Pinnock  2 AC 104] just as the housing authority itself could have done.”
Importantly, the court went on to confirm that CPR Part 55 does not prevent a county court judge from disposing of the matter ‘summarily’ without a trial. If the matter is dealt with summarily, the court would assume evidential matters in the defendant’s favour (in other words, simply assume that they would be able to produce the “necessary evidence” in relation to their disability discrimination defence) and then go on to consider whether this factual background would give rise to a “seriously arguable” defence. In the absence of it doing so, and as with Article 8 defences, this is the same high threshold and the judge should strike out the defence and grant the landlord a possession order if he was otherwise entitled to one.
Lady Justice Arden concluded that “the circumstances of [this] case, if proved in all respects, would not outweigh the strength of the countervailing interest of Aster, and so the [county court] judge was right to dismiss it summarily”.
What does this mean for the social housing sector?
This is a decision of key practical significance to social landlords and their budgets. In so many cases involving mandatory possession orders, social landlords are faced with having to deal with ‘public law’ defences grounds based on Article 8 and disability discrimination under the Equality Act 2010. County court judges often take differing approaches between the two defences leading to many cases being unnecessarily sent off for trial only for the defendant’s evidence not to come up to proof and a possession order being made after what some may consider was an completely unnecessary trial. This is costly, time consuming and, arguably, prevents social landlords allocating property efficiently to those most deserving of it.
*UPDATE: Supreme Court has granted permission to appeal
Following the refusal of permission to appeal to the Supreme Court by the Court of Appeal, the Supreme Court dealt with an urgent application made by the Appellant on 31 July 2014 for permission to appeal. Lady Hale JSC, Lord Kerr JSC and Lord Clarke JSC have granted permission to appeal and directed that the appeal will be heard on 18 November 2014.