Disability discrimination defences in possession proceedings

A disability discrimination defence to possession proceedings may succeed if:[1]

• the tenant is a disabled person 

• the landlord in claiming possession, or seeking to evict, unlawfully discriminates against them, and

• the tenant can rebut any assertion by the landlord that the decision to seek possession, or eviction, is a 'proportionate means of achieving a legitimate aim'

As managers of premises, both social and private landlords (and their agents) must not discriminate unlawfully against disabled tenants.[2]

They must not:

• treat disabled people less favourably because they are disabled (direct discrimination)

• indirectly discriminate against disabled people[3] or treat them unfavourably because of something arising as a consequence of their disability[4] without being able to show that they are pursuing a legitimate aim in a proportionate manner

• harass disabled people (and people perceived as such, or associated with them) or victimise them.

In most housing possession cases, tenants/occupiers are likely to rely on indirect disability discrimination or discrimination arising from disability.

Public sector equality duty

If the landlord is a public body, such as a local authority or a housing association, it must also comply with the public sector equality duty (PSED).[5] For example, a landlord seeking possession should be able to show how, in deciding to evict a disabled tenant/occupier, it has given 'due regard to the need to eliminate discrimination and advance equality' and what steps it has taken to take account of the tenant/occupier's disability.

The High Court gave guidance about the factors to be taken into account when applying the PSED in possession claims:[6]

• when a public sector landlord is contemplating taking or enforcing possession proceedings against a disabled person, the landlord is subject to the PSED

• the PSED is not a duty to achieve a result, but a duty to have due regard to the need to eliminate discrimination and advance equality - the public sector landlord must weigh the PSED goals against countervailing factors, for example the impact the disabled person’s behaviour is having on others

• the PSED is designed to ensure that the particular vulnerabilities of a disabled person in the context of possession proceedings attract full appraisal

• a public sector landlord is not required in every case to take active steps to inquire into whether there is disability and whether it is relevant; a duty to make further inquiries arises only when there is information before the decision maker which presents a real possibility that this might be the case

• the PSED is a matter of substance over form - whilst it is helpful to record the steps taken in seeking to comply with the duty, a conscientious decision maker may comply with the PSED even if they are unaware of its existence

• the PSED is a continuing duty and does not end after a possession order is granted and before it has been enforced - the landlord should consider the consequences of enforcing an order ideally before the order is sought, but in the absence of any material change of circumstance, the continuing nature of the duty will not mandate further explicit reconsideration thereafter

• the PSED is a relevant consideration if the landlord knew or ought reasonably to have known of the disability - the lateness of any such knowledge may impact on the discharge of the duty, for example if a tenant whose anti-social conduct has already been adversely affecting his neighbours but whose disability is raised at the eleventh hour may find that the discharge of the PSED is less favourable to that person because the landlord’s options have been limited and the rights and reasonable expectations of others are more pressing

• if a court is satisfied that the public sector landlord has carried out a sufficiently rigorous consideration of the PSED, the court is not entitled to substitute its views as to the weight that should be attached to the competing factors

A landlord will indirectly discriminate against a disabled tenant/occupier if the decision to take possession proceedings:[7]

• applies or would apply to persons without the tenant/occupier's disability, but

• puts the disabled tenant/occupier at a particular disadvantage compared to others with no disabilities, and

• the landlord cannot show it to be a proportionate means of achieving a legitimate aim

The Equality Act 2010 corrects the effect of a House of Lords decision which held that there was no unlawful discrimination if a non-disabled tenant would be treated in the same way as a disabled tenant.[8]

Discrimination arising from disability occurs where a landlord treats a tenant/occupier less favourably because of something connected with their disability (not the disability itself, but something which arises in consequence of the disability, including anything which is the result, effect, or outcome of the disability, for example behavioural issues).

There is no need for a comparator. The tenant/occupier only needs to prove that they have been subjected to a detriment, irrespective of the treatment of others and irrespective of whether a tangible loss has been suffered. For example, merely to deprive a person of choice is to subject them to a detriment. It is a defence to a discrimination claim if the landlord did not know, or could not reasonably have been expected to know that the tenant/occupier is disabled.

Discrimination arising from disability can be justified if the landlord proves that the treatment is a proportionate means of achieving a legitimate aim.[9]

What constitutes a legitimate aim for a social landlord and a private landlord will at times be different, as will what constitutes a proportionate means of achieving that aim.

Structured approach

Generally, an action, such as seeking possession, will only be proportionate if it:[10]

• pursues a legitimate aim

• is rationally connected to the legitimate aim

• is a measure which is no more than is necessary to achieve the legitimate aim – where alternatives exist, they will likely have to be explored[11]

• does not produce an excessive or disproportionate effect.

Proportionality will be interpreted differently depending on whether the landlord is a private individual or a public body, such as a local authority or a housing association, but a disabled tenant/occupier would generally be able to argue that:

• seeking possession is not the means of achieving the landlord's legitimate aim which least interferes with the tenant/occupier's right not to be unlawfully discriminated against, in other words there may be a lesser measure that eviction that could achieve those aim, or

• if seeking possession is the least interfering means, that it produces an excessive or disproportionate effect

The landlord must prove that seeking possession is still proportionate at the time of trial, not only when a notice was served.[12]

Comparison with Article 8 ECHR defences

The Supreme Court has held that the proportionality exercise to be undertaken by the courts when assessing a disability discrimination defence to possession proceedings is not the same as the one to be made when assessing a defence under article 8 of the European Convention on Human Rights (ECHR).[13]

An occupier's rights under the Equality Act 2010 are in addition to, and stronger than their rights under article 8 ECHR. The mere fact that it can be taken as a given that a public authority is seeking possession for legitimate aims - the vindication of its ownership rights and managing its housing stock - is not sufficient to counter a disability discrimination defence. The burden of proof is on the landlord to show that either there is no discrimination, or that the possession action is proportionate. 

See Public law and human rights defences for more information on Article 8 and proportionality.

Where a tenant asserts that the possession order would constitute unlawful disability discrimination, the court should apply a structured approach to determine whether eviction is a proportionate means of achieving a legitimate aim.[14] It will rarely be appropriate for a court to make a summary judgement where a disability discrimination defence is raised. 

It might be justified where:

• there is no realistic prospect that a tenant could prove they are disabled

• there is no link between the possession action and any disability

• it is clear that the possession action is a proportionate means of achieving a legitimate aim.

Enforcement stage

The Court of Appeal held that having assessed that the making of a suspended possession order against a disabled tenant was a proportionate mean to achieve a legitimate aim and not discriminatory under section 15 of the Equality Act 2010, a court did not have to reconsider these issues at enforcement stage unless there was a fundamental change of circumstances.[15] This could include a new diagnosis of an incurable illness or a change in the relevant law after the making of the possession order but before eviction.

Rent arrears possession cases

In these cases, the reduction of the arrears is a legitimate aim.

A depressed and anxious tenant of a social landlord could defend a claim for possession by arguing that eviction is a greater interference than necessary with their right not to be subjected to discrimination if, for example, assistance with an underlying benefit problem might reduce the arrears.

In a case where a housing association uses the mandatory ground 8[16] against such a tenant, under housing legislation the case might be hopeless if there is no prospect of securing a significant reduction in the rent arrears to below eight weeks by the date of the court hearing, or of reducing arrears by way of a counterclaim for disrepair. 

The tenant could argue, in addition to any issues of non-compliance with the pre-action protocol, that:

• they are a disabled person under section 6 of the Equality Act 2010, as depression and anxiety are impairments which have a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (in this case, sorting out housing benefit entitlement and paying the rent)

• the landlord manages the premises and the decision to seek possession clearly amounts to subjecting them to a detriment, and is a step in evicting them; applying for possession is unlawful disability discrimination under section 35 of the Equality Act 2010

• the provision, criterion or practice which leads the landlord to decide to seek possession applied both to the disabled tenant and to other tenants not so disabled (for example the landlord would start possession proceedings against any tenant with a particular level of rent arrears using mandatory ground 8 instead of discretionary grounds) and that provision, criterion or practice places the disabled tenant at a particular disadvantage in respect of other tenants, so indirect discrimination occurred

• they are placed at a particular disadvantage as it is more difficult for them to resolve the housing benefit difficulties as a result of their debilitating depression and anxiety

Nuisance possession cases

In these cases, the curtailment of anti-social behaviour is a justifiable housing management practice and is a legitimate aim.[17]

Where it can be argued that the nuisance results from a mental health problem or learning difficulties, the tenant may be assisted by considering whether the provision of care, social or medical services would be sufficient to reduce or alleviate the nuisance so that eviction is not necessary to achieve the legitimate aim of bringing the nuisance to an end.