Equality Act Defences – A reminder for landlords when taking action against disabled tenants

Equality Act Defences – A reminder for landlords when taking action against disabled tenants

Birmingham v Stephenson [2016] EWCA Civ 1029

The above case was reported last week and concluded:

  • Disabled defendant’s should be given a realistic opportunity to defend
  • Once there was a potential Equality Act defence, the burden of proving that the discrimination was proportionate shifted to the landlord
  • the burden was on the council to show that no less drastic action would be appropriate, it is in my view incumbent on the Council to at least show that alternatives have been considered and reasons given for their rejection
  • The question of proportionality is not a ‘binary choice’ between eviction and doing nothing
  • Intermediate steps that might be considered before possession include:
    • Support from Social Services
    • Support from Mental Health professionals
    • Change in Medication
    • Sound Proofing/Similar Measures
    • ABC type arrangements with specific rather than general prohibitions
    • An ASB Crime & Policing Act 2014 injunction
  • The feasibility of such alternative steps should not be summarily ruled out
  • It is for the landlord to show that “nothing less than eviction will do

Facts

Mr Stephenson was granted an introductory tenancy in 2014 by Birmingham City Council.  At the end of 2014 the Council received complaints, mainly from one neighbour, about Mr Stephenson’s behaviour.  The complaints related principally to noise emanating from the flat including loud music and TV, arguments and moving furniture.  Mr Stephenson’s flat was uncarpeted. The Council contacted Mr Stephenson on a number of occasions about the complaints but decided in 2015 to seek possession and served a notice pursuant to the introductory tenancy regime.  Mr Stephenson requested a review of the decision, as he was entitled to do, but on that review the Council upheld its decision to serve notice and seek possession.

Introductory Tenancy

As Mr Stephenson had an introductory tenancy, the Council did not have to prove ‘grounds’ for possession or reasonableness and provided it had followed the correct notice procedure it should have had an absolute right to possession. Nevertheless the Council submitted a witness statement with their particulars of claim for possession from a housing officer, setting out the complaints and acknowledging that Mr Stephenson had mental health issues for which he had support but asserting that he had failed to keep appointments for his medication.  A witness statement from Mr Stephenson’s neighbour about the anti-social behaviour was also submitted.

Hearings

At the initial hearing on 2nd November 2015 the Deputy District Judge adjourned the case to 13th January 2016 to enable Mr Stephenson to seek legal advice and file a defence.

At the hearing on 13th January 2016, Mr Stephenson was represented by a solicitor but that solicitor had only been able to see Mr Stephenson a couple of days before the hearing.  Mr Stephenson’s solicitor requested a short adjournment to enable a fully pleaded defence to be filed.  The solicitor suggested that Mr Stephenson was vulnerable; that the Council had not liaised with social services; that the Council should not be using an introductory tenancy as a ‘weapon’ against a vulnerable individual and that the Equality Act applied, as did the Human Rights Act and proportionality.

Adjournment Refused

The Deputy District Judge refused the adjournment and made an order for possession.  The DDJ’s reason was that Mr Stephenson had no more than a tenuous possibility of a defence and Mr Stephenson had later had ample opportunity to seek advice and file a defence.

Permission was granted for the case to be considered by the Court of Appeal.

Court of Appeal decision

The Court of Appeal concluded that:

  1. The DDJ had not properly taken account of Mr Stephenson’s mental health problems when considering whether to adjourn or not. If Mr Stephenson had been a “well-resourced individual, with no mental disability” it may have been appropriate to refuse an adjournment but it was unrealistic to have expected Mr Stephenson’s solicitor to have formulated a full defence by the time of the hearing.
  1. The references by Mr Stephenson’s solicitor to “proportionality” should have alerted the DDJ to the real possibility of at least a pleadable defence under the Equality Act.
  1. The DDJ had not been referred to the Supreme Court’s decision in Aster Communities Ltd v Akerman-Livingstone 2015 which sets out the correct approach to a case in which the defendant seeks to resist an order for possession on the ground that he is disabled:
    • When a disability discrimination defence is raised the question is not simply whether the social landlord is entitled to recover possession but also whether the landlord has done all that can be reasonably expected of it to accommodate the disabled person’s disability, and;
    • When a disability discrimination defence is raised the burden shifts to the landlord to show that:
      1. there was no less drastic action that could have been taken to solve the problem, and;
      2. the detrimental effect upon the defendant was outweighed by the advantages of taking the action.
    • Summary judgement for possession when a disability discrimination defence is raised would be rare but could still be obtained if the landlord can establish that:
      1. the defendant had no real prospect of establishing that he was under a disability or
      2. It was plain that possession was not being sought because of something arising in consequence of the disability or The claim plainly represented a proportionate means of achieving a legitimate aim
  1. It was common ground that Mr Stephenson was disabled. It was at least arguable that there was a sufficient causal link between Mr Stephenson’s mental disability and his anti-social behaviour which led to the decision to evict him.  The burden had therefore shifted to the Council to establish that evicting Mr Stephenson was a proportionate means of achieving a legitimate aim.
  1. The Council argued at the Court of Appeal that in light of Mr Stephenson’s medical condition his behaviour was unlikely to abate and that eviction was the only real solution. The Court of Appeal commented that ultimately the Court may decide that is right but that it was incumbent upon the Council to at least show “what alternatives had been considered and reasons given for their rejection”.
  1. The question of proportionality was not a “binary choice” between eviction on the one hand and doing nothing on the other. Clearly something had to be done for Mr Stephenson’s neighbour but there may well be “intermediate steps that could be taken short of throwing Mr Stephenson out on the street”.
  1. The Court of Appeal gave examples of what those ‘intermediate steps’ could be (see bullet points at the top of this briefing) and said that although not all, or indeed any, of those steps might be feasible, they could not be summarily ruled out. It was for the Council to show that nothing less than eviction would do and it was not so obvious a case that Mr Stephenson should be deprived of the opportunity to defend the claim.
  1. The case was remitted to the County Court for directions.

Summary

This case is a good reminder of the need to consider all options before deciding to take legal action against a disabled tenant.  We highly recommend the use of some method of recording in writing your consideration of other steps to help deal with the issues raised by the Courts in Akerman-Livingstone and this Birmingham case.  We can provide an Equality Act assessment form for such purposes if you do not already have such a document.

If you would like a copy of the form or if you have any further queries, please do not hesitate to contact our Team on 01753 876800 or caroline.cowley@owenwhite.com.

ENDS                                                                                                                                                 November 2016