Zenith Housing Current Awareness

Disability discrimination and proportionality in possession proceedings:

27 July 2018

Vilma Vodanovic

Discussion of two recent cases of Eales v Havering London Borough Council unreported (decision of Sir Alistair Macduff in the QBD of 13th July 2018) and Paragon Asra Housing LTD (formerly known as Paragon Community Housing Ltd) v James Neville [2018] EWCA Civ 1712

Since Akerman-Livingstone v Aster Communities Ltd (formerly Flourish Homes Ltd) [2015] UKSC 15, there has been little by way of reported cases on the issue of proportionality within the context of disability discrimination under the Equality Act 2010. This month there have been two decisions which deal, to some extent, with these issues so it is worth having a look at both of them albeit that they address different issues.

Eales

The appeal in Eales was heard by Sir Alistair MacDuff siting in the QBD of the High Court. The available report on Lawtel however is brief so the discussion here is rather limited based solely on that report. The full transcript of the judgment is not available. Still, it is useful to have a look at the issues that were raised.

The tenant suffered from a personality disorder but at the same time she had drug and alcohol misuse problems. Complaints of anti-social behaviour against neighbours started in 2016 and got worse thereafter. In 2017 there was a conviction for a racially-aggravated public order offence against a neighbour. The landlord local authority sought to exclude her from her home by way of an injunction and also brought possession proceedings for ASB and rent arrears.

Proceedings were defended on disability discrimination and public law grounds in that the local authority had failed to follow its own policy of referring tenants to the vulnerable persons panel and that a less coercive injunction would have sufficed also. This was a non-secure contractual tenancy so these appeared to be the only defences available.

The Judge at first instance found that the ASB complained of was not ‘in consequence of the disability’ thereby not engaging section 15 of the Equality Act 2010 but the Judge still went on to consider proportionality it appears and also public law grounds and ordered both possession and the injunction.

The grounds of appeal are not set out in the Lawtel report summary but it appears that the main criticism was the lack of reasons given by the first instance Judge.

The appeal Court decided that the Judge at first instance was right to find that the ASB had not arisen ‘because of something in consequence of the disability’. Presumably this would have meant that there was no need to consider proportionality because section 15 was not engaged, but the appeal court said that the Judge at first instance must have had proportionality in mind. The Lawtel report unfortunately does not then set out how this was balanced in this particular case. 

As for the public law grounds, the appeal Court found that the Judge at first instance, despite giving no reasons for this particular aspect of the defence, had had these arguments in mind. 

The appeal Court went on to say that it was not the law that any breach of a policy was unlawful. The question was whether the decision reached in this case to issue proceedings proceedings was one which no reasonable housing authority could have taken. It would be an intolerable burden to have to follow internal policies inch by inch. The failure to refer the appellant to the vulnerable persons panel was not a material breach. The local authority had been entitled to take a broad brush approach, and the judge had been entitled to find that its decision was not unreasonable.

The appeal Court went on to say that the reasons for the possession order being made were obvious and there was no error on the part of the Judge at first instance. This was a clear case of the local authority being right to seek possession. 

So in fact the guidance that can be gleaned from this case is more helpful on the issue of the public law grounds rather than disability discrimination.

Paragon Asra Housing

In the case of Paragon Asra Housing Ltd though, a point of more practical application arises. The question there was this:

Was the court required to reconsider proportionality when enforcing a possession order having previously done so when making the order?

Possession proceedings were brought against Mr Neville (an assured tenant) based on anti-social behaviour and relying on discretionary grounds. He defended on grounds of disability discrimination (personality and behavioural disorders). There was no trial however as admissions were made by Mr Neville of breaches, the landlord accepted that Mr Neville was disabled but the Court disposed of the matter by making a suspended possession order on terms, having found it reasonable to do so. It was agreed though and the Judge making the order found (albeit without trial) that the seeking of possession by way of a suspended possession order was not unfavourable treatment for the purposes of the Equality Act 2010.

Following that order, ASB continued and the landlord sought to enforce the warrant of possession because the suspended order had been breached. Mr Neville applied to suspend the warrant of possession and the issue that arose on that application was whether it was necessary to consider the discrimination point again in seeking to enforce the order.

District Judge King found it was not necessary. This decision was appealed and was heard by Mr Recorder Williamson QC who held that DJ King was wrong, allowed the appeal and suspended the warrant until a further hearing when the issue of potential discrimination by the proposed eviction could be determined. In January 2018, Henderson LJ permitted Paragon to pursue a second appeal on the basis that the difference in the courts below raised an important question of principle and/or practice.

The points on appeal before the Court of Appeal were effectively these: (1) once there had been a determination of the proportionality issue on the making of a possession order, there did not need to be a further consideration of proportionality in order to enforce the order; and (2) even if there needed to be such a re-consideration, DJ King did consider the point and still found it proportionate to allow enforcement of the possession order.

Sir Colin Rimer, in giving the judgment of the Court of Appeal, with whom Lady Justice Asplin and Lord Justice Simon agreed, said the following at paragraphs 51 and 52 in respect of the first point raised on appeal:

’51. In my judgment, there is nothing in the judgments in Aster Communities supporting such an approach and I respectfully regard the Recorder’s different view as wrong. The logic of his view is that in a case in which, following a section 15(1)(b) proportionality analysis, a court makes a lawful outright 28-day possession order with which the tenant fails to comply, so that the landlord has then to issue a warrant for possession, the tenant is at that point entitled to require the court to embark afresh upon the same proportionality exercise that it had made when ordering possession. That is also the logic of Mr Fitzpatrick’s submission. The suggestion is, in my judgment, mistaken and I would reject it. When making the possession order, the court has undertaken the relevant proportionality inquiry. It has satisfied itself that possession must be given and that, if it is not, the order can lawfully be enforced. The order is binding between the parties. The tenant can have no right, absent any relevant change of circumstances, to require the court to re-consider the same question upon the landlord’s claim to enforce the order. The recognition of such a right would be a recipe for repeated applications of a vexatious nature. There is no such right.’

52. As I have acknowledged, and as Mr Kohli accepts, there will be cases where between the making of the possession order (whether suspended or outright) and its enforcement there has been a material change of circumstances such that a legitimate question will arise as to whether it is still proportionate to enforce the possession order. In such a case, the court will have to re-consider the section 15(1)(b) proportionality inquiry. That, however, is not this case. The Recorder was wrong to hold that Paragon’s claim to enforce the order must be the subject of such an inquiry.’

The first point on appeal having been disposed of as above, there was no need in fact to go on to consider the second point but the Court of Appeal did nevertheless comment on it and found that in substance DJ King had considered proportionality even though she did not need to. Sir Colin Rimer dealt with this as follows in his judgment:

’54. More particularly, Judge King found that, and explained why, these were proceedings against a tenant whose anti-social conduct had had, and was having, an intolerable impact upon his neighbours. A landlord’s claim to recover possession from such a tenant will plainly satisfy the first two steps in the inquiry. As to the third and fourth steps, the judge found that whilst Mr Neville had been given the opportunity to mend his ways, there was no basis for finding that he had done so or that, if the warrant was not executed, there would be no recurrence of his conduct in the future. In holding the case to be ‘a Lambeth v. Howard’ case, Judge King was finding that Mr Neville’s conduct had been so intolerable that there was no way in which the situation could be repaired and so no alternative to permitting the execution of the warrant. In Lambeth, Sedley LJ had held that an outright order for possession was ‘an acceptable means of achieving a legitimate aim’ and, in regarding the present case as of the same character, Judge King regarded the execution of the warrant as a similarly proportionate response to Mr Neville’s conduct.’

(the reference to Lambeth v Howard is Lambeth London Borough Council v. Howard (2001) 33 HLR 636)

In summary therefore, where there has been no material change of circumstance between the making of the possession order and its enforcement, there is no requirement to re-consider proportionality in the context of disability discrimination under the Equality Act 2010; otherwise, where there has been a material change, there clearly is such a requirement. What might amount to that material change is of course fact specific to each case and unsurprisingly no guidance was given by the Court of Appeal on this.

Current Awareness

By the Housing team