The mental health maze
Landlords seeking to evict tenants with mental disabilities must tread carefully, says Robert Wassall, head of the social housing sector group at Blake Lapthorn
When mental health problems lead to anti-social behaviour by residents, social landlords may seek an eviction - but increasingly they have been
facing a legal quagmire.
Two laws have, in particular, been responsible for this; the Disability Discrimination Act 1995, (now replaced by the Equality Act 2010), and the Human Rights Act 1998.
In 2003, in the case of North Devon Homes v Brazier, a landlord was unable to evict a tenant who admitted serious, persistent ASB because she had a disability (paranoid psychosis). The court decided that the Disabilitiy Discrimination Act made it unlawful to evict someone when the breach of the tenancy terms was caused by the disability, in this case because the tenant was unable to prevent herself from behaving in that manner. This was the first time this act had been used in a housing case.
This was followed in 2004 by the case of Manchester Council v Romano, in which the Court of Appeal decided that a possession order could be granted against a disabled tenant but only if the landlord believed it was justified in seeking the order to avoid endangering the health or safety of the neighbours, and it was reasonable in all the circumstances for the landlord to hold that opinion.
In 2008, the case of Malcolm v Lewisham Council reached the House of Lords. It decided that, for there to have been any discrimination, a
tenant needed to show their mental condition played some motivating part in the landlord’s decision to evict.
This case was regarded by many lawyers representing social landlords as a turning point, making it easier to evict those with mental health conditions. The incumbent government agreed and ensured that the Equality Act reversed this decision, thus reverting the law to where it was as a result of the Romano case.
In 2010, in the case of Barber v Croydon Council the Court of Appeal concluded that possession proceedings against a tenant with a personality disorder, who had assaulted a caretaker, were unreasonable.
In the same year in the case of Manchester Council v Pinnock, the Supreme Court confirmed that any person at risk of being evicted by a social landlord should have the right to defend the claim on the basis that their human rights were being infringed, even if their right of occupation under domestic law had ended.
Every anti-social behaviour case has at least one victim, often many more. These are the people who really suffer disruption to their lives, often for months or even years. They must stand up and be counted by helping to build a case against the perpetrator.
Landlords seeking to evict a tenant with a disability must be able to demonstrate to a court that: they have taken the disability into consideration when deciding to start legal proceedings; concluded that they must take legal action because of the effect the anti-social behaviour is having on health of the perpetrator or the victims; and ensured that legal action is a proportionate response to the ASB.