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’.