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Assessing proportionality: Tenancy enforcement action and the Equality Act 2010

We frequently receive cases where disabled tenants/occupiers are causing anti-social behaviour and the behaviour is linked in some way to their diagnosed, or suspected, medical condition. In these circumstances, the concern of the client is always what action can be taken to address the problems that tenant is nonetheless causing?

The Equality Act 2010 prohibits several forms of discrimination on the grounds of prescribed protected characteristics, which includes disability. As housing providers, our clients are bound by the obligations and duties prescribed by this legislation. The 2010 legislation created, in particular, a specific disability discrimination offence under section 15, which is committed where A treats another unfavourably because of something arising as a consequence of a disability and A cannot show that it is a proportionate means of achieving a legitimate aim.

This section therefore deems it discrimination if enforcement action, such as seeking an injunction or pursuing possession proceedings, is taken in response to anti-social behaviour which is a consequence of a medical disability which is either known by the landlord, or reasonably ought to have been known about. This is except where it is a 'proportionate means of achieving a legitimate aim' to take that action. Or in more straightforward terms, tenancy enforcement action can be taken against a disabled tenant where there is no less drastic means of preventing the anti-social behaviour and the effect of the action being taken on that particular tenant is outweighed by the benefits to the landlord and to others affected by the behaviour. The burden of showing that the action being taken by the landlord is proportionate, and therefore not discriminatory, rests with the landlord themselves.

In the case of Liverpool Housing Trust v Abdullah, the Court addressed the question of whether action being taken by LHT was 'proportionate.' In assessing this, the court described it being necessary to balance the steps which are open to the landlord to address the problem behaviour on the one hand and the extent of that behaviour caused by the tenant and its effect on others, on the other. At one extreme, it there have only been minor, isolated incidents which were dated and there were other options open to the landlord short of the possession proceedings being taken which might address the issues, possession proceedings would not be 'proportionate.' On the other, if it was apparent that the landlord had tried alternative methods of dealing with the behaviour and no more were available, the action was more likely to be so.

In the recent case of Birmingham City Council v Stephenson [2017] the Court of Appeal gave further guidance. In order to discharge the burden of showing that the landlord had not committed discrimination by seeking to evict a disabled tenant for anti-social behaviour linked to his paranoid schizophrenia, it needed to show, as a minimum, that alternatives short of possession proceedings had been considered and rejected with reasons. In this case there was evidence that the tenant's condition and behaviour could be moderated with treatment and medication. Other options available to the landlord, the Court stated, might therefore have included the tenant receiving support from social services reminding him to take his medication and attend treatment appointments, support from other mental health professionals, a change of medication and/or investigation as to whether the local authority might be able to provide more suitable, supported alternative accommodation for the tenant.

It was accepted by the court that some of the suggested steps might not be feasible, however what was important was that they be considered. It was for the landlord to show that nothing less than an eviction would do.

For more information contact Amy Chadwick in our Housing & Regeneration department via email or phone on 0113 386 2694. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Housing & Regeneration department here

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