Aster Communities Ltd (formerly Flourish homes Ltd) v Akerman-Livingstone  EWCA Civ 1081 (30 July 2014) is an extraordinary decision that will – if allowed to stand – have a significant impact on the day-to-day management of possession claims in the county court.
The Court of Appeal’s finding that Equality Act 2010 cases should, like Article 8 cases, be summarily assessed on the “seriously arguable” test must have come as a shock to those acting in the case. It certainly appears to have come as a shock to the Supreme Court, which granted permission to appeal the very next day.
Mr Akerman-Livingstone had a severe prolonged duress stress disorder (“PDSD”) and was described as a “very sick man” (paragraph 2). In 2010, Mendip District Council accepted a full homeless duty and secured him temporary accommodation with what later became Aster Communities Ltd, a housing association.
Mendip offered Mr Akerman-Livingstone permanent accommodation but he appears to have been unable to cope with what was involved. Eventually Mendip discharged their duty, a decision that, unhelpfully, was not the subject of a review or appeal. Mendip required Aster to bring proceedings to evict Mr Akerman-Livingstone but in defence, he raised the issue of disability discrimination and contended that the decision to seek possession was a breach of section 15 of the Equality Act 2010.
HHJ Denyer, sitting in the Bristol County Court held that, in the light of Aster’s aims in getting back possession of the property to comply with Mendip’s direction, Mr Akerman-Livingstone did not have a “seriously arguable” case that Aster had breached the Equality Act 2010 and granted an immediate possession order. Cranston J dismissed the appeal against that order and it was against this order that Mr Akerman-Livingstone appealed to the Court of Appeal.
Court of Appeal
The Court of Appeal (Arden, Black, Briggs LJJ) dismissed the appeal, finding that the approach to proportionality under the Equality Act 2010 was the same as that under Article 8 in Manchester City Council v Pinnock  2 AC 104 and Hounslow London Borough Council v Powell  2 AC 186:
27 In my judgment, the approach to proportionality under Article 8 in Pinnock and Powell is in fact the same approach as section 15 of the EA 2010 requires. The proportionality exercise is generally divided into three (or even four) steps but it does not require every step in the exercise to be carried out: the steps are cumulative and if the court finds that any one step is not met there is no need to go to the other steps. That is what in my judgment happened in Pinnock and Powell: the court went straight to the balancing exercise because the weight to be attached to the twin aims was almost overwhelming: it would outweigh any consideration based on Article 8 save in exceptional circumstances. The twin aims are equally valid in EA 2010 cases.
28 Section 136 of the EA 2010 [reversal of burden of proof] does not prevent this conclusion. Nor does it produce any different result from that under Article 8. Section 136 requires the applicant to show certain threshold matters, but this is no different from a tenant who relies on Article 8 having to show that the property is his home. These matters do not include the question of justification (see section 15(1)(b)), which is a proportionality exercise. Moreover, there is nothing in sections 15 or 136 of the EA 2010 to prevent the court from attaching weight to the fact that the housing authority has formed a view about how it should carry out its statutory duties and applying a less intense scrutiny to its decisions than it would apply in other contexts. Mr Luba submits that in Pinnock the Supreme Court laid down a “given” that, when seeking possession, a social landlord would not need to adduce evidence that it was performing its functions in relation to the allocation and management of its housing stock. He further submits that that “given” would not apply in a disability discrimination case. However, to say that there is no “given” in discrimination cases is simply to pre-empt the issue on this appeal.
29. Furthermore, there is no rational basis for saying that the weight to be given to the social landlord’s interest is somehow diminished where the tenant is relying on disability discrimination than where the tenant relies on Article 8. In both types of cases, the social landlord is pursuing proceedings in order to recover property that might be used to provide accommodation for other homeless people. Such properties are likely to be in short supply.
The Court further found that CPR r 55.8 permitted the summary disposal of possession proceedings as at the first possession hearing the judge could decide whether there should be a trial and so could perform the same role as it would do if it was hearing an application for summary judgment under CPR Pt 24.
There was no distinction, found the Court, between the LHA and a social landlord which is a housing association, and Aster could rely on Mendip’s functions to “outweigh” Mr Akerman-Livingstone’s interests.
The hasty grant of permission by the Supreme Court is a big red hand pointing to the flaws in this judgment and a sign that alarm bells are ringing as to its effects. (Flashbacks to Malcolm v Lewisham  1 A.C. 1399.)
One of the stated ambitions of the Equality Act 2010 was to “harmonise” the law across different practice areas (see Explanatory Note) and to “de-clutter” the discrepancies that existed between, say, education and housing (see White Paper). To this end a single definition was given of each type of discrimination applying across housing, employment, education, public services and so on. The parachuting in of a housing law test from another context entirely to the summary assessment of discrimination claims is completely at odds with that intention.
And it is not as though this is an issue untroubled by authority. The House of Lords in Anyanwu v South Bank Students Union  1 W.L.R. 638 was clear that discrimination cases should not, except in exceptional circumstances, be struck out:
Lord Steyn paragraph 24
“… such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.”
Lord Hope para 37
“I would have been reluctant to strike out these claims, on the view that discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence.
In the employment context, the authorities are clear that where a ‘crucial core’ of facts is in dispute, it is an error of law, except in an “exceptional case” to strike out a discrimination claim: Ezsias v North Glamorgan NHS Trust  I.C.R. 1126, CA.
The problem with the Court of Appeal’s finding is that it treats the facts of the case as being largely unimportant beyond the personal circumstances of the tenant and proceeds on the basis that proportionality is merely an exercise in weighing up the differing priorities against one another; hence the Court of Appeal’s finding that “a social landlord’s countervailing interest generally outweighs that of the tenant” and the conclusion that “for a tenant to succeed on his disability discrimination case he will have to show some considerable hardship which he cannot fairly be asked to bear” (paragraph 37). Damned with a faint concession Arden LJ finds that “the possibility exists that in rare cases, the discrimination defence may succeed” (paragraph 38).
However, as Anyanwu suggests, and as was argued on Mr Akerman-Livingstone’s behalf (in what was called the “target point”), disability discrimination claims focus on what the other party has done or not done, and it is that which is contended to be unlawful. It is aimed at ensuring that those made responsible under the Act (employers, landlords, those who run businesses and so on) act in ways that promote equality of opportunity. Accordingly, in a disability discrimination case, the support offered to a tenant, or not offered, the steps short of possession that were or were not considered are of crucial relevance.
Thus, in R (Elias) v Secretary of State for Defence  1 WLR 3213 para 165 provides that in discrimination cases there should be a structured approach to the question of justification: “First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?” This is a test which emerges out of the European law directives that the Equality Act brings into effect and the European Court of Justice has found that justification will not be established under the directives if the same objective could be achieved by less discriminatory means: Kutz-Bauer v Freie und Hansestadt Hamburg (C-187/00)  E.C.R. I-2741.
This third issue will always be fact sensitive including consideration of what support might have been provided, whether the duty to make reasonable adjustments has been complied with and whether the public sector equality duty has been properly explored. Indeed, in R (E) v JFS  2 A.C. 728 the Supreme Court got tantalisingly close to suggesting that where, as part of the public sector equality duty less discriminatory measures were not considered, a finding that measures were proportionate would not be made: Lord Hope at :
“There is no evidence that the governing body gave thought to the question whether less discriminatory means could be adopted which would not undermine the religious ethos of the school. Consideration might have been given, for example, to the possibility of admitting children recognised as Jewish by any of the branches of Judaism, including those who were Masorti, Reform or Liberal. … There may perhaps be reasons, as Lord Brown JSC indicates (see para 258), why solutions of that kind might give rise to difficulty. But, as JFS have not addressed them, it is not entitled to a finding that the means that it adopted were proportionate.”
The Court of Appeal refused a stay pending an application to the Supreme Court on the basis that the head lessor had given notice to Aster; it was said that if they did not give up possession, the head lessor would be unable to sell, possible resulting in possession proceedings by the head lessor’s mortgagee and financial loss to the head lessor. Scant comfort was offered by the observation that if Mr Akerman-Livingstone was evicted, Mendip would owe him a duty under section 190 HA 1996.
The Supreme Court did however grant a stay pending determination of the appeal – the very next day no less. No doubt the Supreme Court recognised that Mr Akerman-Livingstone’s appeal would be of little benefit if he – a “very sick man” – was on the streets by the time the hearing came around.