County Court Decision

The County Court granted possession in favour of Richmond Housing Partnership, a registered social landlord. The Defendant tenant had an assured tenancy. The landlord sought possession under four grounds:

• Ground 8 due to rent arrears of circa £18,000.
• Ground 12 due to breaches of tenancy, including a failure to allow the landlord and its contractors access to the property.
• Ground 13 due to the internal and external condition of the property (arising from hoarding of items internally and the gardens, which were overgrown and filled with black bin bags and other discarded household items).
• Ground 14 due to anti-social behaviour of the tenant’s son who lived at the property.

The County Court found that the tenant was disabled for the purposes of the Equality Act 2010 (“the 2010 Act“). The tenant had schizophrenia and housing disorder. The tenant was also (informally) diagnosed with delusional disorder in or around 2008 and had a history of systematised, persecutory, and grandiose delusions. She did not recognise the extent of hoarding in her home and refused help to address it.

The tenant sought to have the possession claim dismissed or, as a matter of discretion (under section 7(4) of the Housing Act 1988) refused, on the basis the landlord’s actions amounted to unlawful discrimination on the grounds of the tenant’s disability.

Section 15 of the 2010 Act states:

15 Discrimination arising from disability

• A person (A) discriminates against a disabled person (B) if –
• A treats B unfavourably because of something arising in consequence of B’s disability, and
• A cannot show that the treatment is a proportionate means of achieving a legitimate aim
• Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

The Judge accepted that the circumstances resulting in the landlord’s actions were matters that occurred in consequence of the tenant’s mental illness and therefore in consequence of a disability. The possession claim then turned on the issue of statutory justification.

By section 15(1)(b) of the 2010 Act unfavourable treatment occurring because of something arising in consequence of disability is justified if the Defendant (i.e. the landlord in this case) in a discrimination claim can show the unfavourable treatment was “a proportionate means of achieving a legitimate aim.”

The County Court decided the landlord was pursuing a legitimate aim, that being to ensure the property was adequately maintained by the tenant and not causing nuisance to those in the locality and its actions were proportionate. It also stated it is a legitimate aim in this context to ensure tenants pay their rent and comply with their tenancy conditions.

The High Court Decision

Three grounds of appeal were pursued by the tenant in the High Court:

• When the decision to seek possession was made by the landlord, the landlord’s position was that there was no connection between the tenant’s hoarding and her mental illness. It therefore followed that the decision to commence proceedings was not proportionate.
• The Judge failed to determine that the landlord had failed to seek and put in place specialist intervention.
• The Judge erred in law when he determined the landlord did not have the power or skill to apply to the Court of Protection.

The first ground of appeal failed. The High Court stated that whether a landlord formed a view there was or might be a connection between that disability and the tenant’s conduct is not central to, or determinative of, whether the landlord’s actions were a proportionate means of achieving a legitimate aim for the purposes of the justification defence.  The steps taken (or not taken) by the alleged (landlord) discriminator are to be assessed on their own terms.

The second ground of appeal failed. The landlord had gone to significant lengths to seek to address the hoarding problem (including an injunction). The High Court stated the context of the landlord and tenant relationship had to be borne in mind i.e. the landlord was not a local authority or social services authority exercising statutory powers and having obligations to consider and promote the well-being of persons subject to illness or disability. The landlord had sought to engage with the tenant and had sought to involve others such as social services who had wider powers to assist the tenant. The High Court stated the obligation to act proportionately under 2010 Act did not require the landlord to engage specialist help for the tenant. Doing so would go well beyond anything that would ordinarily be within the ambit of a landlord and tenant relationship. Counsel for the landlord also pointed to the likely cost of specialist services and the finite resources of a social landlord, which should also be a material consideration in respect of proportionality.

The third ground of appeal failed. The Court of Protection course proposed by the tenant would require the landlord to incur significant expenditure in pursuit of a speculative exercise. The High Court stated this would go well beyond any step that could legitimately be expected of a landlord and well beyond anything that could be considered as a requirement of a proportionate approach on the facts of the case.

The appeal was therefore dismissed.

Possession and proportionality: how we can support you

The High Court has made it clear the question to be asked when considering unfavourable treatment relating to disability and proportionality is not whether there was something more a social landlord could have done. The question to be asked is whether what the social landlord did was a proportionate response in the circumstances, taking account of the claimant’s disability, including the contribution that disability made to the state of affairs the landlord sought to address. Each case will therefore need to be assessed objectively on its own facts and circumstances.

Our team of experts is on hand to help with any queries you may have about your duties as a social landlord. Please get in touch with Karl Anders, Jordon Kellett or Charlotte Ash.