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Supreme Court Rules on the Correct Approach to Equality Act Defences
in Possession Proceedings

The decision of Akerman-Livingstone v Aster [2015] UKSC 15 is one of great importance and significance to all disabled occupiers of premises whether in social housing or the private rented sector.
  • The Supreme Court held that courts should not approach Equality Act 2010 defences in the same way as defences under Article 8 of the European Convention on Human Rights.
  • Whilst the court does have the power to summarily determine a claim where an Equality Act 2010 defence is raised, the situations in practice where this is likely to succeed are rare.
  • In assessing whether a proposed eviction is a proportionate means of achieving a legitimate aim the court should apply a four stage structured approach consistent with that adopted in other anti-discrimination legislation.
  • In enacting the Equality Act 2010 "Parliament has expressly provided for an extra right to equal treatment - for people to be protected against direct or indirect discrimination in relation to eviction" (para 25).
The Facts 

The Appellant is a 47-year-old man who suffers with Prolonged Duress Stress Disorder or Complex Post Traumatic Stress Disorder as a result of sustained physical and emotional abuse perpetrated by his parents when he was a child. His condition has been exacerbated over the years by having been "failed by the system".

In 2010 the Appellant made a homelessness application to his local housing authority who accepted that they owed him the full housing duty under s193 of the Housing Act 1996. He was then offered a number of properties culminating in an offer of accommodation in Street, which the Appellant declined on the basis of the association between that area and his past abuse. The council, who disagreed with the Appellant as to its suitability, then sought to discharge its duty to the Appellant, and the Respondent, who had provided the accommodation in which the Appellant was residing, brought possession proceedings. There was subsequently an adjournment of the possession proceedings whilst the Appellant made a fresh homelessness application to the council. The council again accepted that it owed the Appellant the full housing duty but discharged this when the Appellant refused accommodation or failed to bid for the properties on offer. The expert medical evidence was that the Appellant's condition played a major part in his inaction.

Following this, the Respondent restored the possession proceedings and the case was listed for a hearing to determine whether an Equality Act 2010 defence could be raised. HHJ Denyer QC heard this and summarily dismissed the defence, ruling that Equality Act 2010 defences should be considered in the same way as human rights defences under article 8 of the European Convention on Human Rights. Appeals to the High Court and then the Court of Appeal were dismissed.

On appeal to the Supreme Court it was held that the courts below had adopted the wrong approach, but due to recent developments in the facts - the head lessor required the property back from the Respondent - it declined to disturb the possession order. The Supreme Court concluded that due to these developments a possession order would now be inevitable so there would be no point, and there would be no kindness to the Appellant, in remitting the matter back to the County Court.

Summary Consideration of Equality Act Defences
  • The test to be applied on a summary consideration of an Equality Act 2010 defence is that set out in CPR r55.8, namely, whether the claim "is genuinely disputed on grounds that appear to be substantial". It is not for the defendant to show that his or her case meets the "high threshold" of being "seriously arguable", as required in article 8 cases.
  • Summary disposal is available in Equality Act 2010 defence cases and examples were given of where such a summary disposal might succeed: where there was no real prospect of the defendant establishing that he had a disability, or where it was plain that possession was not being sought because of something arising in consequence of a disability, or where eviction was plainly a proportionate means of achieving a legitimate aim.
  • However, the Supreme Court considered that it would be rare that arguments for summary disposal would succeed (para's 36 and 60).

The Correct Approach to Proportionality In Equality Act 2010 Cases
    • The four stage structured approach to proportionality, which was rejected in Hounslow LBC v Powell [2011] 2 AC 186 as being applicable to article 8 defences, is the correct approach to an assessment of proportionality under s15 of the Equality Act 2010. The four stages are as follows.
    • Firstly, is the claimant's objective sufficiently important to justify limiting a fundamental right?
    • Secondly, is there a rational connection between the claimant's objective(s) and the defendant's eviction?
    • Thirdly, is eviction no more than is necessary to accomplish the claimant's objectives?
    • Fourthly, are the disadvantages that will flow disproportionate to the aims pursued?
    • As set out by Lady Hale at paragraph 34 of the judgment: "If it is a claim of disability discrimination under section 15, then the landlord would have to show that there was no less drastic means of solving the problem and that the effect upon the occupier was outweighed by the advantages."
    • The article 8 "twin aims" can feature in the proportionality exercise but are not enough by themselves to counter a discrimination defence.
    Russell James
    Russell, who was first junior counsel for the Appellant, specialises in Housing and Homelessness, Property Litigation and Civil and Commercial Litigation. 
    Our Housing Team:
    Russell James | Garth Richardson |  Edward Bailey | Scott Horner
    Jennifer Tear
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