Time limitation on disability discrimination defence?

This is definitely a specialist question, for which I seek housing people’s opinions.

A semi-hypothetical situation:

A suspended possession order made against the client, a secure tenant, two years ago on grounds of rent arrears. Client didn’t attend hearing. Client had contact with mental health services at the time, but it is now clear, on expert’s report, that the client has for some time, including the relevant period, suffered from serious mental health problems and that these are, at the least, related to the the accrual of rent arrears (benefit problems).

Post Malcolm, or even post Romano, there is a prima facie case for an application to set aside the SPO either as unlawful as Disability Discrimination, or as client has a defence and didn’t attend hearing for a good reason.

But.. Schedule 43 Part 2 para 6(1) DDA 1995 says:

6 (1) A county court or a sheriff court shall not consider a claim under section 25 unless proceedings in respect of the claim are instituted before the end of the period of six months beginning when the act complained of was done.

Section 25  states that

(1) A claim by any person that another person—

(a) has discriminated against him in a way which is unlawful under this Part; or

(b)…

may be made the subject of civil proceedings in the same way as any other claim in tort or (in Scotland) in reparation for breach of statutory duty.

(2) For the avoidance of doubt it is hereby declared that damages in respect of discrimination in a way which is unlawful under this Part may include compensation for injury to feelings whether or not they include compensation under any other head.

So, the question is:

Does an application to set aside in extant possession proceedings where the client is a tolerated trespasser  amount to a claim for the purposes of s.25 DAA, such that Sch 3 Part 2 6(1) limitation would apply?

My sense is no – there is no free-standing claim or claim for damages involved. It is a defence to a possession claim, not a even a counterclaim. But I am not at all sure. So, opinions very welcome, particularly if they go beyond ‘yes’ or ‘no’.

 

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Possession, secure-tenancy, Tolerated trespasser and tagged , , , , .

5 Comments

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  2. NL, do forgive me for not having left you a comment when I finally managed to get onto your blog! I was so excited it completely slipped my mind. I am sorry to have caused you such agonies! The problem from my home computer still persists. I will try and rectify it over the weekend when I have some time to look at it. At least I know that I can still drop by now and then! AD :-)

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  4. I don’t think that Sch. 3, Part 2, para. 6(1) is your problem:
    (a) it isn’t a claim that you’re seeking to raise, rather it is merely a factor that needs to be considered as part of the “reasonableness” analysis on their claim;
    (b) in Romano, Brooke LJ at 63 & 64 seems to be saying that, whilst a counterclaim for a declaration and / or an injunction would be a claim, raising these matters as an aspect of reasonableness would not be;
    (c) s.25 itself suggests that DDA rights can be vindicated other than by counterclaim (i.e., by being raised at the reasonableness stage). It provides that a discrimination claim may (not must or shall) by the subject of a claim. The use of “may” would suggest that s.25 is permissive, rather than mandatory;
    (d) even if all that is wrong, Sch. 3, Part 2, para 6(3) gives the court a power to extend time for compliance. Given the importance that the CoA attached to DDA issues in Malcolm, I’d be surprised if a DJ wouldn’t extend time.

    However, don’t you have a more significant problem trying to meet CPR 39(3)(5)(a)?

    J

  5. I’m with you on a) b) & c) – a) & c) were my thinking. I’ll look at b). I’d prefer to be arguing a Malcolm ‘unlawfulness’ than a Romano ‘reasonableness’ line, though, but Malcolm itself seems a bit vague on whether this is a defence or, in effect, a counterclaim/injunction.

    CPR 39(3)(5)(a) – the definition of promptly depends on the facts of the case. For instance, in my hypothetical, the combination of the disability itself and lack of representation/legal advice would be the basis for arguing an extended time for an application. But 39(3)(5)(a) could well be an issue depending on the specific facts in each instance.

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