Akerman-Livingstone v Aster Communities Ltd [2015] UKSC 15

When the Court of Appeal held that a disability discrimination defence to possession under Equality Act 2010 had to face the same ‘seriously arguable’ summary test as an Article 8 defence, we were surprised, and very unimpressed. It seems the Supreme Court felt similarly (and unanimously), although sadly it did not help the tenant in this case.

The possession claim was for temporary accommodation provided for Mendip Council by Aster. Mendip’s Part VII duty to Mr A-L had been discharged, following Mr A-L’s refusal of a suitable offer of accommodation on the same street. That refusal may very well have been related to Mr A-L’s mental health problems, but there was no s.202 review of the decision, or the offer (apparently because there could be no dispute about the suitability of the property).  Mr A-L had defended on the basis of disability discrimination under Equality Act.

The issue for the Supreme Court was whether the issues involved in an Article 8 human rights defence and an Equality Act defence could be equated to the point that an Equality Act defence could also be disposed of by summary assessment and the ‘seriously arguable’ threshold test – did the proportionality of the eviction face the same test in each defence?

Baroness Hale’s main judgment first breaks down the differences between the Convention rights – Article 8 – and Equality Act defences based on direct or disability related discrimination.

“the substantive right to equal treatment protected by the Equality Act is different from the substantive right which is protected by article 8. All occupiers have a right to respect for their home. 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. Parliament has further expressly provided, in sections 15 and 35, for disabled people to have rights in respect of the accommodation which they occupy which are different from and extra to the rights of non-disabled people. Landlords may be required to accommodate, or to continue to accommodate, a disabled person when they would not be required to accommodate, or continue to accommodate, a non-disabled person.”

While the ‘twin aims’ presumed for a public body landlord in Pinnock – “to vindicate the local authority’s property rights, and secondly, to enable the authority to comply with its statutory duties in the allocation and management of the housing stock available to it” – might “almost always trump any right to respect which is due to the occupier’s home”, it doesn’t follow that they will trump the occupier’s equality rights:

“Equality rights prohibit both direct and indirect discrimination, as well as the special concept of disability discrimination. But they all have the same aim, which is to secure equality of treatment, by prohibiting inequality of treatment on grounds of a protected characteristic. Thus, save as expressly provided, there is no defence to direct discrimination. No landlord is allowed to evict a black tenant in circumstances where he would not evict a white tenant. The fact that the landlord is thereby vindicating his property rights is neither here nor there. No landlord is allowed to adopt a lettings or eviction policy which indirectly discriminates against black people, unless he can show that it is a proportionate means of achieving some independent aim. The aim of vindicating his property rights would indeed be a “given”, but is scarcely likely to be sufficient to justify a discriminatory provision, criterion or practice.”

There are further differences in the public policy considerations between those of ‘the general run’ of social housing cases, and Equality Act issues.

As a result:

“When a disability discrimination defence is raised, the question is not simply whether the social landlord is entitled to recover the property in order to fulfil its or the local authority’s public housing functions, but also whether the landlord or the local authority has done all that can reasonably be expected of it to accommodate the consequences of the disabled person’s disability and whether, at the end of the day, the “twin aims” are sufficient to outweigh the effect upon the disabled person. These are questions which a court is well-equipped to address.”

Further, there are distinct differences in the operation of the burden of proof.

“I am prepared to accept that, in possession actions brought by social landlords against tenants who otherwise have no right to remain in the property, it can generally be taken for granted that the landlord is acting in pursuance of the twin aims; and further that those twin aims are entitled to weigh heavily in a proportionality exercise. However, as already explained, that is not by itself enough to counter a discrimination defence. Once facts are established that could give rise to a discrimination claim, the burden shifts to the landlord to prove otherwise. This will depend upon the particular type of discrimination alleged. If it is a claim (or defence) of direct discrimination, for example that a disabled person has been evicted when a non-disabled person in the same or similar circumstances has not, then the landlord would have to show that the disability was not the reason for the difference in treatment. If it is a claim of indirect discrimination, for example that the landlord has imposed a requirement upon its tenants which puts disabled tenants at a particular disadvantage, then the landlord would have to show that there was a good independent reason for the requirement. 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 express burden of proof provisions in the Equality Act cannot simply be ignored because there are some elements in the proportionality exercise which can be taken for granted.”

For this reason, Equality Act defences are not suited for summary disposal, unless perhaps in the rare case where the Claimant could immediately show:

i) that the defendant had no real prospect of proving that he was disabled within the meaning of the Act; or
(ii) that it was plain that possession was not being sought because of something arising in consequence of his disability; or
(iii) that bringing and enforcing the claim were plainly a proportionate means of achieving a legitimate aim

Otherwise, the test is as per CPR 55.8(2). If the claim is “genuinely disputed on grounds that appear to be substantial” directions to trial should be given.

In the present case, the approach to summary disposal of the defence had been wrong.

“There are, however, two problems with Judge Denyer’s approach. The first is that he appears to have regarded his role as akin to the role of the county court judge in homelessness appeals under section 204 of the 1996 Act, in other words, as akin to a judicial review role. It is, however, clear that in possession actions generally, and in discrimination cases in particular, the role of the court is not akin to judicial review. It has to undertake the proportionality exercise itself. The second problem is that he regarded the proportionality exercise under section 15 as the same as the proportionality exercise under article 8. For the reasons given earlier, it cannot be exactly the same. While some things can be taken for granted, and some cases may be so clear that summary disposal is warranted, the issues are not all the same.

In this particular case, the first issue was whether the appellant’s inability even to take up an offer of accommodation in the same street was something which arose out of his mental illness. Mr Callow’s evidence raised a substantial case that it was. If he was right about that (and of course his evidence could have been challenged), then the next question was whether there was any lesser action that could have been taken and, if there was not, whether the harm to the appellant of forcing him to move was outweighed by the benefit to the landlord, the local authority, to the other homeless people in the area, and to the public generally, of being able to obtain possession of this particular property. The landlord might very well have been able to show that it was. There may have been good reasons why it was not practicable to leave the appellant where he was and put the alternative accommodation in the same road to the use to which it was wished to put his flat. But in my view the time which Judge Denyer devoted to this case ought to have been spent on considering the merits of the appellant’s defence rather than listening to a day’s legal argument devoted to whether to do that”.

However, and unfortunately for Mr A-L, while Baroness Hale, and indeed others, would have remitted the case for trial, there had been supervening events.

Aster held the properties on fixed term leases which expired in February 2014. The freeholder, under, pressure from its mortgagees, served notice to quit on Aker, leaving Aker with no interest in the property save a licence to enforce the original possession order when it could. Aka was left at risk of a claim for damages by the freeholder.

In these circumstances, as Lord Wilson put it:

“My view is that, no doubt with the utmost reluctance, the judge at any full trial of the action would feel bound to conclude that the eviction would strike a fair balance between the claimant’s need to accomplish its objectives and the disadvantages thereby caused to the defendant; that therefore the eviction would be a proportionate means of achieving a legitimate aim; and that, by securing his eviction, the claimant would therefore not be discriminating against him.”

The appeal was therefore dismissed, despite the argument on principle and procedure having been wholly successful.

Comment

Well, thank goodness for that on the summary disposal issue. That just had to be right, not just given the policy reasons underlying the Equality Act, with clear statutory prohibitions on eviction, but also the very different position on burden of proof to that set out in Pinnock and Powell.

Worth noting that both Baroness Hale and Lord Neuberger are careful to refer to Article 8 defences as applying to “social housing” and “a public sector occupier”, I presume so as to avoid any suggestion of pre-judging McDonald v McDonald.