This is a cautionary tale for DJs and DDJs hearing Equality Act defences. In Birmingham CC v Stephenson  EWCA Civ 1029 (not on Baili yet, but we have seen a transcript), the Court of Appeal considered whether a possession order granted in respect of an introductory tenancy was wrongly granted where an Akerman-Livingstone Equality Act style defence was raised (alongside an Article 8 defence). Mr Stephenson had been responsible for noise nuisance from his (uncarpeted) flat. He suffers from paranoid schizophrenia, the symptoms of which are alleviated but not completely cured by medication.
On 2nd November 2015, at the first hearing of Birmingham’s claim, the matter was adjourned to 13th January 2016 to enable Mr Stephenson to instruct solicitors and to use his “best endeavours” to file a defence. At the hearing on 13th January 2016, Mr Gilmore had been instructed by Mr Stephenson but only on a preliminary basis and Mr Gilmore asked the DDJ for a short adjournment to enable him to serve a fully pleaded defence. The grounds were to be Equality Act and Article 8, with potentially a public law element thrown in. The DDJ made a possession order on the basis that there was no substantial defence and Mr Stephenson had received ample time to file a defence.
The Court of Appeal disagreed. In an implicitly excoriating paragraph, it is said:
Had Mr Stephenson been a well‑resourced individual, with no mental disability, that view might well have been sustainable. But the fact is that the council’s own evidence showed that Mr Stephenson was living on benefits and that he had been seen begging in the local shopping parade. The Deputy District Judge’s view also, in my judgment, took no account of Mr Stephenson’s mental health problems. Mr Gilmore had only seen Mr Stephenson some two working days before the hearing and had only taken preliminary instructions. It was unrealistic to have expected him to have formulated a full defence by the time of the hearing.
There was a potential Akerman-Livingstone type defence, which shifted the burden of proof. Once the principal criteria had been established, the Supreme Court established that it will only be a rare case that can be summarily disposed of. That much seems obvious; as obvious is the fact that, as we know from that decision, there are a range of orders that can be made (the approach to proportionality being rather different from Article 8).
The council served evidence before the Court of Appeal that, in essence, said that the noise nuisance was so bad and its effects on the neighbour so significant that the case on proportionality was overwhelming. The answer to that, said the Court of Appeal, is that the court’s jurisdiction is not binary under the Equality Act:
Thus, in my judgment, the flaw in both the Deputy District Judge’s approach and the council’s respondent’s notice is to treat the question of proportionality as a binary choice between eviction, on the one hand, and doing nothing on the other hand. Clearly something must be done for the well being of Mr Stephenson’s neighbour. However there may well be intermediate steps that could be taken short of throwing Mr Stephenson out on the street…
The Court canvassed a range of possibilities, not on the basis of their feasibility, but because they could not be summarily ruled out.