Comments on: DDA and mandatory possession http://nearlylegal.co.uk/blog/2008/03/dda-and-mandatory-possession/ The Joy of Housing Law Thu, 20 Nov 2008 12:45:54 +0000 http://wordpress.org/?v=2.6.3 By: Nearly Legal http://nearlylegal.co.uk/blog/2008/03/dda-and-mandatory-possession/#comment-5372 Nearly Legal Wed, 26 Mar 2008 23:30:46 +0000 http://nearlylegal.co.uk/blog/2008/03/dda-and-mandatory-possession/#comment-5372 David, Your comment and a report from Michael Paget at tonight's HALPA meeting have conjoined to make me have a fresh look at S v Floyd. I have turned what was to be a response here into a new post. This is very interesting stuff. David,

Your comment and a report from Michael Paget at tonight’s HALPA meeting have conjoined to make me have a fresh look at S v Floyd. I have turned what was to be a response here into a new post. This is very interesting stuff.

]]> By: housinganger http://nearlylegal.co.uk/blog/2008/03/dda-and-mandatory-possession/#comment-5369 housinganger Wed, 26 Mar 2008 20:44:54 +0000 http://nearlylegal.co.uk/blog/2008/03/dda-and-mandatory-possession/#comment-5369 In regard to your point about there being a course of action open to victims of discrimination I would rather agree with Lady Justice Arden in Malcolm 68. It may be said that it is sufficient if Mr Malcolm is left to his remedy in damages under s25 of the DDA 1995. No counsel suggested this would provide Mr Malcolm with an adequate remedy if Lewisham has committed unlawful discrimination. Even if he is able to defend a possession order, he will not be put back in the position that he was before subletting. But it would be of little assistance to him to have damages, for which he would have the expense and delay of bringing a fresh action. and 64 in Romano 64. In our judgment, it would be preferable in a case involving a secure tenancy or an assured tenancy for the tenant to assert the matter on which he relies as part of his case that it would be unreasonable for the court to make a possession order, rather than to complicate the proceedings by adding a formalistic counterclaim for a declaration or an injunction In regard to your point about there being a course of action open to victims of discrimination I would rather agree with Lady Justice Arden in Malcolm

68. It may be said that it is sufficient if Mr Malcolm is left to his remedy in damages under s25 of the DDA 1995. No counsel suggested this would provide Mr Malcolm with an adequate remedy if Lewisham has committed unlawful discrimination. Even if he is able to defend a possession order, he will not be put back in the position that he was before subletting. But it would be of little assistance to him to have damages, for which he would have the expense and delay of bringing a fresh action.

and 64 in Romano

64. In our judgment, it would be preferable in a case involving a secure tenancy or an assured tenancy for the tenant to assert the matter on which he relies as part of his case that it would be unreasonable for the court to make a possession order, rather than to complicate the proceedings by adding a formalistic counterclaim for a declaration or an injunction

]]> By: David Giles http://nearlylegal.co.uk/blog/2008/03/dda-and-mandatory-possession/#comment-5368 David Giles Wed, 26 Mar 2008 19:40:15 +0000 http://nearlylegal.co.uk/blog/2008/03/dda-and-mandatory-possession/#comment-5368 S v Floyd probably did not provide the Court with the opportunity to say in the judgment what, so far as I could tell during argument, was the opinion of all its members that the DDA did not provide disabled people with a "defence" (whether in the strict sense or on the basis of the claim being unlawful) to otherwise entirely lawful claims by landlords for possession based on mandatory or discretionary grounds or, I suspect, a right to possession of a contractual tenancy. The DDA gives the victims of discrimination a cause of action, not a defence or an ability to have possession proceedings dismissed. The Court came close to expresing their scepticism about the whole notion of the DDA being deployed to prevent landlords from enforcing their statutory/contractual rights to possession at para 48 of the judgment. The Court could easily distinguish Malcolm. The landlord had a statutory mandatory ground for possession On the facts, S had not claimed that a disability was related to non payment of rent. Also at paras 56 and 57 the Court dealt with the concept of discrimination and pointed out that in Taylor v OCS Group the court of appeal decided that discrimination involved disability operating consciously or unconsciously on the mind of the discriminator as a reason for the discriminator's treatment of the disabled person. Taylor v OCS was decided before Malcolm but was not cited to the court in that case. In S v Floyd there was no evidence that the landlord's decision to commence and prosecute possession proceedings was influenced by S's allegedly disabled condition. The landlord's decision was based solely on S's failure to pay rent, and she had no knowledge of S being disabled or that S had ceased to pay rent for a disability related reason. S v Floyd probably did not provide the Court with the opportunity to say in the judgment what, so far as I could tell during argument, was the opinion of all its members that the DDA did not provide disabled people with a “defence” (whether in the strict sense or on the basis of the claim being unlawful) to otherwise entirely lawful claims by landlords for possession based on mandatory or discretionary grounds or, I suspect, a right to possession of a contractual tenancy. The DDA gives the victims of discrimination a cause of action, not a defence or an ability to have possession proceedings dismissed. The Court came close to expresing their scepticism about the whole notion of the DDA being deployed to prevent landlords from enforcing their statutory/contractual rights to possession at para 48 of the judgment. The Court could easily distinguish Malcolm. The landlord had a statutory mandatory ground for possession On the facts, S had not claimed that a disability was related to non payment of rent. Also at paras 56 and 57 the Court dealt with the concept of discrimination and pointed out that in Taylor v OCS Group the court of appeal decided that discrimination involved disability operating consciously or unconsciously on the mind of the discriminator as a reason for the discriminator’s treatment of the disabled person. Taylor v OCS was decided before Malcolm but was not cited to the court in that case. In S v Floyd there was no evidence that the landlord’s decision to commence and prosecute possession proceedings was influenced by S’s allegedly disabled condition. The landlord’s decision was based solely on S’s failure to pay rent, and she had no knowledge of S being disabled or that S had ceased to pay rent for a disability related reason.

]]> By: Nearly Legal http://nearlylegal.co.uk/blog/2008/03/dda-and-mandatory-possession/#comment-5332 Nearly Legal Thu, 20 Mar 2008 20:25:42 +0000 http://nearlylegal.co.uk/blog/2008/03/dda-and-mandatory-possession/#comment-5332 The judgment in Malcolm discusses the possession claim as a contractual right to possession. Lady Arden at: 40 In this case, Lewisham relies upon its contractual right to possession on giving notice to quit. This is not therefore a case where the court has discretion as to whether or not to make a possession order. Mr Malcolm's subletting had the effect under s 93 of the HA 1995 of terminating his secure tenancy and the tenancy became a mere contractual tenancy. 41 Since Mr Malcolm tenancy is not a secure tenancy, it can only be a contractual tenancy. Such a tenancy is terminable on service of a notice to quit. So it is a bit unfair to say the Court was wrong in Floyd in its reading of Malcolm. It merely replicated an earlier slip. But, although it is an error to call it a 'contractual right to possession', rather than a right to possession of a contractual tenancy, it seems like a fairly small slip, in that nothing in either Malcolm or S v Floyd turns on it as far as I can see. Or am I wrong? The judgment in Malcolm discusses the possession claim as a contractual right to possession.
Lady Arden at:
40 In this case, Lewisham relies upon its contractual right to possession on giving notice to quit. This is not therefore a case where the court has discretion as to whether or not to make a possession order. Mr Malcolm’s subletting had the effect under s 93 of the HA 1995 of terminating his secure tenancy and the tenancy became a mere contractual tenancy.

41 Since Mr Malcolm tenancy is not a secure tenancy, it can only be a contractual tenancy. Such a tenancy is terminable on service of a notice to quit.

So it is a bit unfair to say the Court was wrong in Floyd in its reading of Malcolm. It merely replicated an earlier slip.

But, although it is an error to call it a ‘contractual right to possession’, rather than a right to possession of a contractual tenancy, it seems like a fairly small slip, in that nothing in either Malcolm or S v Floyd turns on it as far as I can see. Or am I wrong?

]]> By: J http://nearlylegal.co.uk/blog/2008/03/dda-and-mandatory-possession/#comment-5326 J Thu, 20 Mar 2008 09:00:19 +0000 http://nearlylegal.co.uk/blog/2008/03/dda-and-mandatory-possession/#comment-5326 Their Lordships were wrong to say, as they did in S v Floyd, that the Malcolm case was about a contractual right to possession. If it had been contractual, the claim would have been put on the basis of Ground 1. However, it was pleaded and fought purely as a NTQ issue i.e, a common law remedy against a person who had lost a statutory right. I feel another JHL article coming on. Their Lordships were wrong to say, as they did in S v Floyd, that the Malcolm case was about a contractual right to possession. If it had been contractual, the claim would have been put on the basis of Ground 1. However, it was pleaded and fought purely as a NTQ issue i.e, a common law remedy against a person who had lost a statutory right.

I feel another JHL article coming on.

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