Disability Defences Could Result in a Full Trial


18 March, 2015

Last week the Supreme Court handed down their judgment in the case of Akerman-Livingstone v Aster-Communities Limited. The Supreme Court held that the court's approach to proportionality in respect of defending possession proceedings based upon disability discrimination is different to the approach the court takes when dealing with an Article 8 defence.

In this case, Mr Akerman-Livingstone suffered from Complex Post Traumatic Stress Disorder following sustained physical and emotional abuse by his parents when he was a child and it was accepted the he suffered from a disability within the meaning of the Equality Act 2010. Mr Akerman-Livingstone became homeless in 2010 and applied to a local authority as a homeless person under Part 7 of the Housing Act 1996. Aster-Communities ('the housing association') provided him with temporary accommodation in a flat in discharge of the local authority's duty to him under Part 7.

A number of offers of accommodation were made to Mr Akerman-Livingstone including an offer of a tenancy of another property in the same road but he failed to accept any of the offers. The local authority decided that a suitable offer had been made and that their duty to him had come to an end. Accordingly, the housing association served a notice to quit and issued possession proceedings in September 2011.

Mr Akerman-Livingstone defended the claim both on the ground that it would not be proportionate to evict him under Article 8 and that his eviction would be disability discrimination. At a preliminary hearing the County Court dealt with both grounds for a defence summarily and held that there was a presumption that possession was proportionate in light of the landlord's exercise of its housing functions. Following this decision, Mr Akerman-Livingstone appealed to the Court of Appeal, where he was unsuccessful and so the appeal was then heard before the Supreme Court.

The Supreme Court held that courts should approach a disability discrimination defence differently to an Article 8 defence. Although both defences require the court to consider proportionality, there are key differences between them. The protection offered by the Equality Act 2010 is a stronger right afforded to disabled occupiers over and above the Article 8 right. Although all occupiers are entitled to respect for their home under Article 8, the Equality Act 2010 Act expressly provides an extra right to equal treatment for people against discrimination in relation to eviction. Therefore, a structured approach to considering proportionality in respect of disability discrimination should be adopted and it may not be sufficient to consider the matter summarily.

The Supreme Court has, however, stressed that this decision does not mean that a court can never summarily order possession against a residential occupier who raises a disability discrimination defence. Possession may be ordered summarily if the landlord can show:

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

Despite deciding that the lower courts had adopted the wrong approach when dealing with disability defences, the Supreme Court did actually dismiss Mr Akerman-Livingstone's appeal. The housing association's lease of the property had come to an end after the County Court proceedings and the freeholder was entitled to possession so a possession order was inevitable.

This ruling means that in cases where there is likely to be an arguable case that the tenant has been discriminated against on the grounds of their disability will no longer be dealt with in a summary hearing. However, a landlord may still evict a disabled tenant because of something arising in consequence of the tenant's disability, but only if they can show that eviction was a proportionate means of achieving a legitimate aim and it is likely that a full trial will be listed in order to determine these issues.

If you have any questions relating to this article, please email Bethany Paliga or call 01772 220241


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