Possession as a proportionate response

An appeal of a possession order, on grounds of disability discrimination and public law.

Eales v Havering LBC (2018) QBD 13/07/2018 (extempore judgment, note on Lawtel)

Ms E had a non-secure contractual tenancy from Havering. Havering had sought possession and an injunction banning Ms E from the property after what Ms E admitted were racially aggravated verbal assaults and physical assaults, and a conviction for a racially aggravated public order offence against a neighbour.

Ms E defended possession on grounds of disability discrimination, on the basis she had a personality disorder that gave rise to the behaviour and that a less coercive injunction would be sufficient and on public law grounds, alleging that the local authority had failed to follow its own policy by failing to refer her case to its vulnerable persons panel.

At first instance, the judge found that drug and alcohol substance abuse, not Ms E’s personality disorder disability, was the cause of the appellant’s behaviour, and granted the possession order and injunction.

Ms E appealed.

The High Court held

The test for whether a landlord could evict a person with a disability was whether it was in aid of an objective which was sufficiently important to justify limiting a fundamental right, whether the measure was rationally connected to the objective, whether the measure was no more than necessary for achieving the objective, and whether overall the balance between means and ends was proportionate. (Akerman-Livingstone v Aster Communities Ltd (formerly Flourish Homes Ltd) [2015] UKSC 15 (our note)).

The first question was whether the tenant’s behaviour on which possession was sought arose from the disability, and the next question whether the eviction was a proportionate means.

The Judge below had assessed proportionality, albeit briefly dealt with in the judgment, however, the key element was that the Judge below had been entitled to find that the appellant’s anti-social behaviour arose out of the combination of her psychological condition and her drug and alcohol abuse. The Judge below had assessed the causal link and been entitled to find that the behaviour had not arisen “because of something arising in consequence of the disability”.

On the public law grounds, it was not the case that any breach of a policy was unlawful. The question in public law terms was whether the decision to seek possession was one that no reasonable local authority would have taken. The High Court apparently added, rather more contentiously, ‘it would be an intolerable burden to have to follow internal policies inch by inch’. The failure to refer the appellant to the vulnerable persons panel was not a material breach and the council’s ‘broad brush’ approach was valid.

On a ground of the Judge below failing to give adequate reasons, just because a judgment had not cited every argument raised did not mean that there was a failure to give adequate reasons. The reasons why the order was made were obvious from the judgment.

Appeal dismissed.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Possession and tagged , .

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