Discrimination on trial

The Court of Appeal handed down a landmark judgment last week that social landlords will welcome, although it may yet be overturned by the Supreme Court in November.

The case involved a disabled tenant, who argued that an attempt to evict him was discriminatory under the Equality Act 2010. The appeal court decision means such cases can be dealt with by the county court summarily, like an article 8 Human Rights Act defence, without necessarily proceeding to a full trial.

In 2010, Jonathan Akerman-Livingstone applied to Mendip District Council for housing, as he was homeless. He was put into temporary accommodation provided by Aster Communities under a non-secure tenancy.

Mr Akerman-Livingstone is vulnerable and suffers from complex post-traumatic stress disorder.

The council decided that he was homeless and therefore should be offered permanent accommodation. It made offers of suitable accommodation, but he rejected them all because he said his disability made it difficult for him to make the decision.

Because the offers were rejected the council considered it had fulfilled its duty to try to house Mr Akerman-Livingstone. It subsequently instructed Aster to end his non-secure tenancy agreement. When he did not move out, Clarke Wilmott began possession proceedings on behalf of Aster.

Mr Akerman-Livingstone sought to defend the proceedings by alleging that his human rights under article 8 had been infringed and that he had been discriminated against by Aster contrary to the Equality Act 2010.

During the course of proceedings, Mr Akerman-Livingstone sought a judicial review. The council accepted a fresh homelessness application. He rejected several further offers of suitable alternative accommodation (one of which is only metres from where he is residing).

Aster restarted possession proceedings in January 2013 and the judge decided that he did not have a ‘seriously arguable’ case. Mr Akerman-Livingstone appealed to the High Court, arguing that the matter should proceed to a fully contested trial and should not have been decided summarily. Mr Justice Cranston dismissed this appeal, but Mr Akerman-Livingstone appealed again to the Court of Appeal, which found against him last week.

The question under consideration was whether the courts should approach a disability discrimination defence in the same way as an article 8 defence of whether it is proportional to evict a tenant.

In her conclusion, Lady Justice Arden stated: ‘There is no rational basis for saying that the weight to be given to the social landlord’s interest is somehow diminished where the tenant is relying on disability discrimination than where the tenant relies on article 8.’

She added that the alleged discrimination, ‘if proved in all respects, would not outweigh the strength of the countervailing interest of Aster, and so the trial judge was right to dismiss it’.

Mr Akerman-Livingstone’s case is to be heard by the Supreme Court in November. In the meantime this is a key outcome for social landlords. Such defences can be dealt with together and, ideally, at summary hearing to avoid proceeding to a full trial.

Jonathan Hulley is a partner for Clarke Willmott. This article was co-written by trainee solicitor Senga Howells