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.