S v Floyd [2008] EWCA Civ 201 is a Court of Appeal case in which the Disability Discrimination Act 1995 is considered in relation to a mandatory Ground 8 possession claim by a private landlord.
In some ways, there is nothing particularly surprising in the case – the Court found that the DDA was not engaged as there was no relation between the appellant’s disability (OCD in this case) and the rent arrears. No DDA defence had been raised at first instance, nor should it have been ‘obvious’ to the Judge that there may be one. In fact the appellant had given specific reasons for withholding rent to the first instance Court that were not connected to the disability.
On that basis, there was no need to inquire further into discrimination (including comparator) or justification.
So far, nothing out of step with Lewisham v Malcolm. As I have always maintained, against some scaremongers, Malcolm did not mean that a possession claim against a tenant with a disability was discriminatory per se. ‘Relation’ of disability to reason for eviction is a real test. As I also suggested in discussing Malcolm, appeals raising a DDA defence for the first time would get a tough hearing.
However, there is an issue raised by the Court that is of significance, but to my mind not adequately considered or argued. Does a DDA defence – (presumably ‘defence’ in the terms of Romano, rather than a DDA claim) apply to mandatory possession proceedings.
The sole judgment distinguishes Malcolm as follows:
- As for Malcolm, although neither judge had the benefit of its guidance, as it was decided subsequent to their decisions, a number of points may be made showing that it does not govern this case.
- First, the mandatory provisions of section 7(3) of the 1988 Act, which give the tenant a statutory right to a possession order against the tenant who is more than 8 weeks in arrears with the rent, did not apply in Malcolm. The local authority relied on its contractual right to possession.
Nothing further is said on this point, as the Court concludes that no disability discrimination arose in this case. But at 71 the Court asks the House of Lords to answer the urgent need for clarification on the scope of the 1995 Act.
I don’t see how Malcolm can be so simply distinguished, certainly without any further reasoning. I suspect that the Court is complicating issues for itself by casting disability discrimination as a ‘Defence’ to a possession claim, particularly in relation to circumstances where there can be no defence by statute (mandatory grounds).
Romano said that an argument of discrimination could be raised as a defence, under resonableness, in discretionary possession claims (at least against secure tenants), but this has led to it being conceived of as a defence per se, where Romano actually said that this was a matter of practical efficiency, rather than having to mount a counterclaim of unlawfulness.
Malcolm thoroughly confused matters by discussing disability discrimination as a ‘defence’ of unlawfulness against a non-discretionary possession order. In some ways, it would have been clearer if Malcolm had said that in such circumstances it should be conceived of as a counterclaim of unlawfulness, although, in practice, formally making the counterclaim would surely be unneccessary.
So when, as here, the Court is troubled by the idea of the DDA adding a defence to a ‘lawful’ mandatory claim, where statute actively rules out a defence, one answer is that the DDA doesn’t add a defence. It adds a counterclaim that the mandatory claim isn’t lawful, which, for reasons of practical utility is treated as a defence in hearing the claim.
There were some other issues on the District Judge not adjourning the hearing – principally on the basis that an issue of the appellant’s capacity was raised. The Court of Appeal found that:
There was nothing before the District Judge to suggest that S did not or might not understand the comparatively simple and straightforward issues raised in the proceedings on which his input was likely to be necessary.
And there was nothing before the Court of Appeal to suggest lack of capacity, either.
The Court’s ‘Exceptional Circumstances’ power to adjourn even a mandatory possession claim was not considered or exercised by the DJ. The Court of Appeal said
i) Non-receipt of housing benefit was not an exceptional circumstance, North British Housing Association v Matthews [2004] EWCA Civ 1736,;
ii) No application was made to the DJ for an adjournment on exceptional circumstances.
And that was pretty much it. There may be a further case, Bernstein v Tate, on s.21 possessions soon. Malcolm is to be heard in the week of 28 April by the House of Lords.
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.
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?
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.
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
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.