The Supreme Court has given guidance on the approach to be taken to a defence to a possession claim which relies on the Equality Act 2010, disability discrimination.
In Akerman-Livingstone v Aster Communities Limited  UKSC 15 the Appellant had severe mental health problems (Complex Post Traumatic Stress Disorder) arising out of his childhood abuse. He applied as homeless; the main housing duty was accepted. As a result of that application he was given temporary accommodation with the Respondent housing association. Various efforts were then made to find him permanent suitable accommodation, all of which proved unsuccessful. The Council eventually informed him that it considered that discharged its duty to him as homeless. The review was upheld, and the Respondent commenced possession proceedings in relation to the temporary accommodation. He relied on article 8 of the European Convention on Human Rights and on the Equality Act, presenting the Court with a psychologist's report. The medical evidence showed that the Appellant's disability led to him refusing the offers of accommodation made to him.
The Council continued to try to find accommodation for him and the possession proceedings were stayed for some time. When they finally came before the Court, the Judge ruled as a preliminary issue that there was no arguable defence and the housing association was entitled to possession. Permission to appeal was immediately granted. The higher courts dismissed those appeals.
The Supreme Court granted permission to appeal within days of the Court of Appeal refusing permission and heard the case very quickly. The same constitution of the Court also heard, a week later, the three combined cases relating to priority need in homelessness, which also raised issues of the public sector equality duty.
The Supreme Court allowed the appeal. Disability discrimination issues may not be dealt with in the same summary way as article 8 issues.
The first question the Court must consider is whether the Defendant is disabled within the meaning of the Act. If so, is the possession due to something arising in consequence of the Defendant's disability? Can the landlord show that the unfavourable treatment (possession) is a proportionate means of achieving a legitimate aim? If there are facts from which the Court could conclude that the possession is because of something arising in consequence of the Defendant's disability, the onus is on the landlord to show that it was not, or if so, that it was a proportionate means of achieving a legitimate aim.
The Court took time to consider article 8 and to re-affirm that in virtually ever case possession will be proportionate. It is in cases relating to occupants who are vulnerable such as by reason of a disability that article 8 defences are most likely to be relevant.
In article 8 cases, the court must start from the position that the social landlord is acting properly in vindication of their property rights. That, the Supreme Court, accepts, must apply in relation to discrimination claims too. But it is not enough to counter a discrimination defence as once facts are established that could give rise to a discrimination claim, the burden shifts to the landlord to show that there is no discrimination, that the disability was not the reason for the difference in treatment.
Once the court is satisfied that disability issues arise, it must conduct the proportionality exercise itself. That is not the same as the exercise under article 8. The protection afforded by the Equality Act is stronger than the protection afforded by article 8. The Judge should not have summarily disposed of this Defence – although there might be cases where summary disposal is still possible. Lord Neuberger considered that, had there been a full hearing, there might very well have been a possession order
As things had progressed in this case, it was inevitable that a county court would make a possession order if the case were remitted. The superior landlord of the block within which the flat was situated was being sold and so the housing association was obliged to give vacant possession. The housing association was at risk of a claim for damages if it did not do so. This was relevant to the issue of proportionality in its widest sense. Lord Wilson commented that it would not be kind to the Appellant to prolong legal proceedings and remit the case for trial. The possession order would therefore stand.
The Appellant won on the law, but lost on the facts. His case, however, serves to demonstrate that a defence of disability discrimination cannot normally be dealt with summarily. It must be given a full airing and a structured approach must be adopted to defences of this kind.
Social landlords would be well advised to review any ongoing proceedings and consider whether they are of the view that possession is justified in light of any disability disclosed by the occupants of the property. The Court will make its own assessment of the proportionality of granting possession, but should have regard to the landlord's reasons for seeking possession. Those reasons will be best explained in a witness statement provided by the landlord.