Thursday, 05 May 2016

Disabled tenants cannot be evicted

Court rules eviction is illegal if breach of tenancy agreement is related to...

Councils and housing associations could be breaking the law if they evict disabled tenants even if they are months behind with their rent, following a landmark Court of Appeal ruling.

The case tested the Disability Discrimination Act against existing housing law. It means that even a non-secure tenant cannot be evicted if any breach of their tenancy agreement is related to their disability.

The case involved council tenant Courtney Malcolm, who defended himself against a mandatory possession order from Lewisham Council after he sublet his home in June 2004.

Mr Malcolm, who has schizophrenia, was not taking his medication when he let his flat while waiting for a right to buy claim to be processed.

The court ruled that Mr Malcolm could not have been sufficiently aware of the nature or consequences of his actions when subletting because of his disability.

A social worker who had contact with Mr Malcolm at the time said that 'he became confused, losing weight and not having the capacity to make appropriate decisions concerning his welfare or the capacity to understand the consequences of his decisions'.

Susan Gronbach, solicitor for Hartnells, which represented Mr Malcolm, said this was, 'an important landmark case which would fundamentally affect the tenancies of potentially thousands of disabled people and people with long-term health conditions'.

A spokesperson for Lewisham Council said it was currently 'considering the implications of this judgement'.

'This is a major decision with far-reaching repercussions not only for Lewisham but local authorities generally,' she added.

Abimbola Badejo, a barrister at Winckworth Sherwood, said there was an apparent clash between housing acts which give landlords a right to possession against a non-secure tenant, and the DDA. This case, he said, had clarified the point.

'There is a conflict between the unqualified act of possession and the Disability Discrimination Act that says it is unlawful to discriminate,' he said.

'This is the first case of its kind at Court of Appeal level where a landlord is entitled to possession on mandatory grounds [and] because the reasons for possession are related to the tenant's disability.'

Agnes Fletcher, director of policy and communications for the Disability Rights Commission, which intervened in the case, said local authorities should demonstrate better joined-up working.

'As Mr Malcolm's case vividly illustrates, bad internal communications meant that the issues around his tenancy weren't dealt with appropriately, which led to discriminatory actions by the council,' she said. 'Councils are under a duty to promote equality for disabled people and ensuring better communications and anti-discrimination policies are in place is fundamental to achieving that.'

A DRC spokesperson added that the disability had to be explicitly linked to the tenancy breach. 'This is not saying that disabled people have more secure rights of tenancy just because they're disabled,' he said.

Mr Malcolm has now lost his security of tenure for subletting but remains in the property on a contractual tenancy agreement with Lewisham Council.

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