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By Dave
12/06/2012

Disability and possession

This is a short note of O’Connell v Viridian Housing [2012] EWHC 1389 (QB) – it’s short because it goes nowhere really and the facts were not exactly great. Ms O’Connell is partially sighted and suffers from depression. She had occupied supported housing managed by Viridian since 1998. Her Mum died in 2005, and she inherited another property. In May 2008, a possession order had been made against her under Ground 8 for non-payment of rent, and it was found her mental and physical impairments, which were disabilities, were not related to her rent arrears. That order was, however, set aside by consent to enable Ms O’Connell to decide what she was going to do with the other property. She didn’t do anything and rent arrears continued. Viridian then sought possession again under Grounds 8, 10 and 11. At a hearing, Ms O’Connell was represented by the duty solicitor but there were no papers; the judge adjourned the hearing until 5pm on the same day, when the duty solicitor said that there public law/Article 8 issues which, not unreasonably, led to the duty solicitor seeking an adjournment. The consent order was still unavailable.

The judge made an order for possession on ground 8, as there were no exceptional circumstances to justify an adjournment and Viridian had extended considerable latitude for a long period of time. The judge was aware of the Article 8 jurisprudence and the (in my view) baleful decision in North British HA v Matthews [2004] EWCA Civ 173. The disability arguments had been dealt with at the previous hearing. Before Tugendhat J, it was argued that the judge was wrong not to adjourn the proceedings as Ms O’Connell had not been in a position to obtain legal representation which would have enabled her to file a defence; there were other irregularities to do with the consent order. A draft defence was provided which pleaded the Equality Act (ss 15, 19 & 20), and various elements of Article 8 (including the interesting defence about the different protections given to secure and assured tenants). The problem was that Ms O’Connell had been offered the opportunity to prepare a witness statement/s for this appeal but she did not explain why she was unable to advance her case at the hearing. There was also no material to show that the judge was wrong or had made a procedural error. The appeal was, therefore, dismissed.

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