The main advantage from the landlord’s point of view of an assured shorthold tenancy (“AST”) is that once the fi xed term has expired possession can be recovered without having to establish any of the grounds set out in Schedule 2 of the Housing Act 1988. However, in all cases, whether notice is served during the subsistence of a fi xed term, or during a periodic assured shorthold tenancy, the only way the landlord can recover possession is by bringing proceedings in court.
Since October 2001 the landlord has had a choice between commencing standard possession proceedings with particulars of claim or under the accelerated procedure contained in CPR 55.11 to 55.19. In any event, under either procedural track s.21 of the 1988 Act might suggest that so long as proper notice has been given1 and the landlord has waited until expiry of that notice before issuing possession proceedings2, the court has no discretion but to make an order for possession3. That long-held view will, no doubt, need to be partially revised following the Supreme Court’s decision in Manchester CC v Pinnock4, as confi rmed recently in Hounslow LBC v Powell5, Corby BC v Scott6 and Birmingham City Council v Richard Lloyd7. However, this article is concerned with the more wide-ranging impact that the Equality Act 2010 (“the 2010 Act”) will have upon possession proceedings.
The 2010 Act, most of which came into force on 1 October 2010, repealed the Disability Discrimination Act 1995 and extended the duties owed to disabled persons. It is a vast Act, dealing with many fi elds of activity in which discrimination can occur, and has already been heralded by the Equality and Human Rights Commission as the most signifi cant development in equality law in 40 years. Importantly for landlords up and down the country, it is also relevant to possession proceedings.
The basic proposition underlying the new provisions is that the court will not make a possession order if to do so amounts to unlawful discrimination – a statement which applies equally to cases where the landlord has to establish that it is reasonable to make a possession order, and where there is no requirement for the landlord to establish reasonableness – for example where a tenant is occupying under an AST.8 An eviction will amount to unlawful discrimination for the purposes of the 2010 Act if it is sought because of “something arising in consequence of [the tenant’s] disability”, which cannot be shown to be “a proportionate means of achieving a legitimate aim” (s.15(1)).9 Disability is defi ned as “physical or mental impairment...[which] has a substantial and long-term adverse effect on [the tenant’s] ability to carry out normal day-to-day activities” (s.6(1) and Sch 6 and the Equality Act 2010 (Disability) Regulations 2010 (SI 2010/2128)).
Since 1 October 2010 the circumstances in which eviction will amount to unlawful discrimination, so that the court will refuse to make a possession order, are accordingly wider than under previous legislation. Whilst it is too soon to obtain reliable statistics, a so-called “Equality Act defence” is likely to be raised with greater regularity than previous similar defences. On that basis, where there is any prospect of such a defence being asserted, a landlord will no doubt be best-placed to deal with the issues arising if he or she at least has an understanding of the applicable principles.
“Something Arising in Consequence of [the Tenant’s] Disability”
Prior to the 2010 Act coming into force, it was only possible to contend that a landlord had discriminated against a disabled tenant if, for a reason which related to the disabled tenant’s disability, he had treated him less favourably than he would have treated others to whom that reason would not apply. In any event, a landlord could justify his discriminatory conduct if he showed that one of several grounds applied.10 Following the House of Lords’ decision in Lewisham LBC v Malcolm11 the availability of a disability discrimination defence was considerably restricted; a tenant was required to prove that the landlord in question would have treated a person differently who was without a disability. As such, it was relatively easy for a landlord to show that he would also have evicted a non-disabled tenant or a tenant with a different disability who acted as the disabled tenant had in the circumstances. There was also some suggestion by Lord Bingham and Lord Scott that a “reason” did not “relate to” a disability for s24(1)(a) purposes unless the fact of the physical or mental condition in question had played some causative part in the decisionmaking process of the alleged discriminator.12
In effect the Lewisham decision made it very diffi cult for a disabled person to prove disability-related discrimination. As such, Parliament responded by broadening the scope of disability discrimination; there is no longer any requirement of a comparator and “a reason” has been replaced with “something arising in consequence of [the tenant’s] disability.” It would seem that the latter now covers cases where, for example, the tenant’s disability is the cause of the decision to sublet13 or failure to pay rent.14
It does not appear to be disputed that even after the enactment of the 2010 Act a landlord is able to evict a disabled person by proper process. However, where the reason for this is related to their disability, and this is likely to be the case where the basis for the eviction is the behaviour of the tenant, the tenant is likely to satisfy the court, no doubt with the assistance of expert evidence, that the alleged breaches (or breach) are “in consequence of his disability”. The landlord must then justify the possession proceedings before the court will make an order for possession.
“Proportionate Means of Achieving a Legitimate Aim”
To date there is no direct appellate authority dealing with this particular aspect of s.15(1). It appears clear that the landlord is required to show 2 things:
- that the eviction was directed at achieving a ‘legitimate aim’; and
- if so directed, that it was a proportionate means of doing so.
Accordingly, the fi rst step for a landlord is to identify the legitimate aim in question. Unfortunately this phrase is not defi ned by the 2010 Act, although, until its repeal by the 2010 Act15, the Race Relations Act 1976, s.1A contained a similarly worded justifi catory defence within the context of indirect discrimination on the grounds of, inter alia, race. In that context the High Court confi rmed that there was in fact no difference between that test and the test enumerated by the European Court of Justice in Bilka-Kaufhaus, namely whether the measures employed ‘correspond to a real need...are appropriate with a view to achieving the objectives pursued and are necessary to that end.”16 It is likely that a similar approach will be adopted in relation to s.15(1).
Whilst it is not possible (nor appropriate) to set out an exhaustive list, in Pinnock17 the Supreme Court did provide some examples of potential legitimate aims, albeit in the context of Article 8 not the 2010 Act. The examples given in relation to a local housing authority were:
- That the eviction would serve to vindicate the authority’s ownership rights.
- That the eviction would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing.
- That there are other cogent reasons, such as the need to remove a source of nuisance to neighbours.
In the majority of cases it would be surprising if the landlord’s decision to commence possession proceedings was not deemed to be in pursuance of a legitimate aim, especially where substantial rent arrears have accrued or the tenant has caused damage to the landlord’s property. As such, the pertinent issue in the majority of cases where an “Equality Act defence” is raised, will be whether issuing proceedings for possession was a proportionate means of achieving that legitimate aim. Certainly in Pinnock, albeit in the context of an alleged Article 8 defence, the Supreme Court agreed with the suggestions put forward by the Equality and Human Rights Commission, that proportionately is more likely to be a relevant issue “in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty”.18
Unfortunately, although unsurprisingly, proportionately is not defi ned by the 2010 Act. In any event it is diffi cult to provide practical guidance considering the issue is likely to depend upon the court’s assessment in each individual case. However, one can at least sketch out steps which could be taken by a landlord to help convince a court that on balance the commencement of possession proceedings was a proportionate measure. Steps a landlord may wish to consider prior to commencing possession proceedings include:
- Considering at an early stage what impact if any the eviction will have upon the tenant in question and weighing up whether the need for an eviction outweighs the seriousness of the impact upon him or her.
- Determining whether alternative steps, as opposed to commencing possession proceedings, are available to remedy the issue in question. It may be possible, for example, to put the tenant in question in touch with a local charity specialising in the provision of support to individuals with learning disabilities. The landlord may even choose to contact the charity directly on the tenant’s behalf.
- Working with the tenant and, if possible, his family, to draft a list of steps he or she should implement to prevent further breaches/rent arrears. This may be particularly useful where the landlord’s complaint relates to the state of the premises.
- Granting an extension of time prior to commencing proceedings in order to enable the tenant to put things right. No doubt the more lenient the period the more proportionate any later decision to issue proceedings will appear. • Viewing possession proceedings very much as a last resort; it will no doubt be diffi cult for a landlord to justify commencing proceedings at the fi rst opportunity.
- Recording the steps taken, the alternatives considered and the reasons for pursuing the path chosen. It will, no doubt, be more persuasive in court if there is a clear paper trail available.
Whilst it is impossible to provide guidance applicable to every case, it appears, considering the circumstances in which eviction may now amount to unlawful discrimination, that one thing can be said with relative certainty: whilst the Equality Act 2010 does not provide a complete defence to a disabled person faced with eviction, it does make the process more complicated and more expensive for the landlord.