Disability discrimination defences

A disabled tenant might have a defence to possession proceedings if their landlord unlawfully discriminates against them in claiming possession or seeking to evict them.[1]

Discrimination includes direct discrimination, indirect discrimination, harassment, victimisation and discrimination arising from disability.

A person is classed as disabled if:[2]

• they have a physical or mental impairment

• the impairment has a substantial and long-term adverse effect on their ability to carry out day-to-day activities

A tenant can raise a disability defence as part of a counterclaim to a possession claim.

A landlord might have a defence to discrimination if they can argue that the decision to seek possession is a proportionate means of achieving a legitimate aim.

Find out more about a tenant's defence to a possession claim on Shelter Legal.

A person who manages premises, including a social landlord, private landlord or their agent must not discriminate unlawfully against disabled tenants.[3] This includes discriminating against them by evicting them.

A tenant in a housing possession case is likely to rely on indirect disability discrimination or discrimination arising from disability.

Direct discrimination

A landlord or agent must not treat a disabled person less favourably because they are disabled.[4] This is direct discrimination.

For example, if a landlord started possession proceedings because the tenant was disabled, this would be direct discrimination.

There is no defence to direct discrimination.

Indirect discrimination

A landlord or agent must not indirectly discriminate against a disabled person.[5]

Indirect discrimination is when a provision, criterion or practice applies to everyone but the policy puts someone with a disability at disadvantage.

A landlord indirectly discriminates against a disabled tenant or occupier if the reason for seeking possession applies or would apply to someone without the tenant or occupier's disability, but this puts the disabled tenant or occupier at a disadvantage compared to a comparator.

A comparator is a person without the same protected characteristic, for example, without the same disability as the tenant or occupier.

A landlord has a defence to indirect discrimination if it can show that the action is a proportionate means of achieving a legitimate aim.[6]

Discrimination arising from disability

A landlord or agent must not treat a tenant unfavourably because of something arising as a consequence of their disability.[7] This includes anything which is the result, effect, or outcome of the disability, for example behavioural issues.

There is no need for a comparator.

The tenant or 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.

Harassment and victimisation

A landlord or agent must not harass or victimise a disabled person.

Harassment includes unwanted behaviour which violates a person's dignity or created an intimidating, hostile, degrading, humiliating or offensive environment.[8]

Victimisation includes when a person is treated less favourably as a result of their involvement in a discrimination or harassment complaint.[9]

A landlord might have a defence to indirect discrimination if the action is a proportionate means of achieving a legitimate aim. This defence does not apply to direct discrimination.

The legitimate aim must be a genuine reason. When an action is considered to be for a legitimate aim or by proportionate means might be different for a social landlord and a private landlord.

Where a tenant argues that a possession order would be unlawful due to disability discrimination, the court should apply a structured approach to determine whether eviction is a proportionate means of achieving a legitimate aim.[10]

What is a proportionate approach

What is considered proportionate will depend on whether the landlord is a private individual or a public body, such as a local authority or a housing association.

An action, such as seeking possession, will normally only be proportionate if it:[11]

• pursues a legitimate aim

• is rationally connected to the legitimate aim

• does not produce an excessive or disproportionate effect

• is a measure which is no more than is necessary to achieve the legitimate aim

This means that where alternative actions exist, a landlord should consider these.[12]

A disabled tenant or occupier could argue that there might be a lesser measure that could achieve the landlord's aim, or that seeking possession produces an excessive or disproportionate effect, even if it is the least interfering means of achieving the landlord's aim.

The landlord must prove that seeking possession is still proportionate at the time of trial, not only when a notice was served.[13]

A local authority landlord cannot rely on the court to presume that its aims are legitimate solely because it is a public body. The burden of proof is on the landlord to show that either there is no discrimination, or that the possession action is proportionate. 

Reassessment at the enforcement stage

The Court of Appeal has held that where the court had assessed that a suspended possession order against a disabled tenant was a proportionate means to achieve a legitimate aim, and was not discriminatory, the court did not have to reconsider these issues at enforcement stage unless there was a fundamental change of circumstances.[14]

A fundamental change of circumstances 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

A landlord's intention to reduce arrears might be a legitimate aim in rent arrears cases, but a tenant could argue that eviction is a greater interference than is necessary.

A tenant might be able to argue that the provision, criterion or practice which leads the landlord to decide to seek possession places the disabled tenant at a particular disadvantage compared to other tenants. This would be indirect discrimination under section 19 of the Equality Act 2010.

For example, a tenant might be placed at a particular disadvantage if it is more difficult for them to resolve benefit issues as a result of their disability.

A tenant could also state that the landlord, applying for possession, as a manager of premises, constitutes unlawful disability discrimination under section 35 of the Equality Act 2010. For example, they could state that the decision to seek possession clearly amounts to subjecting them to a detriment, and is a step in evicting them.

Nuisance possession cases

A landlord's intention to end antisocial behaviour is a justifiable housing management practice and is a legitimate aim.[15]

A landlord could consider whether support from care, social or medical services would be sufficient to reduce or alleviate the nuisance where the nuisance might result from a mental health problem or learning difficulties. Eviction might then not be necessary to achieve the legitimate aim of ending the nuisance.

Defences to discrimination arising from a disability

It is a defence to a discrimination counterclaim if the landlord did not know, or could not reasonably have been expected to know that the tenant or occupier is disabled.

Discrimination arising from disability can also be justified if the landlord proves that the treatment is a proportionate means of achieving a legitimate aim.[16]

Article 8 ECHR defences

A disabled occupier has rights under the European Convention of Human Rights as well as the Equality Act.

Article 8 of the European Convention of Human Rights (ECHR) states that everyone has the right to respect for their family life and home.

The Supreme Court has held that the proportionality exercise a court undertakes when assessing a disability discrimination defence to possession proceedings is not the same as an assessment of article 8.[17]

Find out more about Article 8 and Public law and human rights defences on Shelter Legal.

A tenant can submit a defence to a possession claim on disability discrimination grounds. A tenant might be able to get help with a defence and counterclaim under legal aid.

A tenant can file a counterclaim with the defence form. If the tenant files the counterclaim at any other time, the tenant must obtain permission from the court.

A landlord can file a defence to the counterclaim. The court should consider both the claim and the counterclaim at the same time.

Find out more about about a tenant's defence to a possession claim on Shelter Legal.

Summary judgment

A summary judgment is when a court makes a decision without a full trial.

It will rarely be appropriate for a court to make a summary judgment 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

A landlord who is a public body, such as a local authority or a housing association, must comply with the public sector equality duty (PSED).[18]

For example, a landlord seeking possession should be able to show how, in deciding to evict a disabled tenant or occupier:

• it has given due regard to the need to eliminate discrimination and advance equality

• what steps it has taken to take account of the tenant's disability

Find out more about the public sector equality duty under the Equality Act 2010 on Shelter Legal.

How the public sector equality duty should be applied

The High Court confirmed that when a public sector landlord is contemplating taking or enforcing possession proceedings against a disabled person, the landlord is subject to the PSED.

The court set out guidance about how the PSED should be applied in possession claims.[19]

If a court is satisfied that the public sector landlord has carried out a sufficiently rigorous consideration of the PSED, the court cannot substitute its views on the weight that should be given to competing factors.

Extent of the public sector equality duty

The High Court confirmed that the PSED is a duty to have due regard to the need to eliminate discrimination and advance equality. The PSED is not a duty to achieve a particular result.

The public sector landlord must weigh the PSED against other factors, for example the impact the disabled person’s behaviour is having on others.

Public sector equality duty inquiries

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 which presents a real possibility that there is a relevant disability.

The PSED is a matter of substance over form. This means that while it is helpful to explicitly record the steps taken to comply as a PSED assessment, a thorough decision maker might comply with the duty without this, or even if they are unaware of the duty.

Continuing duty

A landlord's duty to consider the PSED does not end after a possession order is granted or before it has been enforced. The landlord should consider the consequences of enforcing an order ideally before the order is sought.

Although the duty is a continuing one, a landlord does not have to reconsider it in detail in the absence of any material change of circumstance,

Knowledge of the disability

A landlord must consider the PSED if they knew or ought reasonably to have known of the disability.

When the landlord becomes aware of a disability at a late stage, the tenant should be aware that the landlord's options to apply the PSED might be limited.