Paragon Asra Housing Limited v James Neville  EWCA Civ 1712
An appeal on the issue of whether disability discrimination should be considered afresh on an application for stay of warrant following breach of a suspended possession order.
Mr N was Paragon’s assured tenant. Following possession proceedings on grounds of nuisance and harassment, defended on grounds of disability discrimination, the parties agreed a suspended possession order which was approved at a hearing. The order recorded Mr N’s admissions, that Paragon accepted that Mr N’s conditions amounted to a disability under the Equality Act, and that a possession order was merited by to be suspended on terms of no further breach by Mr N.
There were further complaints about Mr N’s behaviour and Paragon sough a warrant of possession. Mr N sought a stay and argued that there should be consideration of whether seeking a warrant amounted to potential disability discrimination.
Upon Mr Neville’s application for its suspension, the question arose whether the court should proceed on the basis that (i) as Judge Smart was satisfied that the suspended possession order did not discriminate against Mr Neville because of his disability, and (ii) there was no suggestion of any material change of circumstances in the meantime, it was unnecessary for the court to consider whether the proposed eviction would discriminate against Mr Neville on disability grounds.
At first instance, this application was dismissed, but a circuit judge allowed it on appeal.
On second appeal to the court of appeal, the court of appeal held:
The Recorder, in paragraph 7 of his judgment, was of the opinion that Aster Communities showed that it was the eviction itself that was the central act in the drama of possession proceedings against a disabled tenant, and that even though the court may earlier have held that the making of a suspended order for possession was not discriminatory, it nevertheless had, of its own motion, to reconsider the same question at the point when such an order came to be enforced.
51. In my judgment, there is nothing in the judgments in Aster Communities supporting such an approach and I respectfully regard the Recorder’s different view as wrong. The logic of his view is that in a case in which, following a section 15(1)(b) proportionality analysis, a court makes a lawful outright 28-day possession order with which the tenant fails to comply, so that the landlord has then to issue a warrant for possession, the tenant is at that point entitled to require the court to embark afresh upon the same proportionality exercise that it had made when ordering possession. That is also the logic of Mr Fitzpatrick’s submission. The suggestion is, in my judgment, mistaken and I would reject it. When making the possession order, the court has undertaken the relevant proportionality inquiry. It has satisfied itself that possession must be given and that, if it is not, the order can lawfully be enforced. The order is binding between the parties. The tenant can have no right, absent any relevant change of circumstances, to require the court to re-consider the same question upon the landlord’s claim to enforce the order. The recognition of such a right would be a recipe for repeated applications of a vexatious nature. There is no such right.
52. As I have acknowledged, and as Mr Kohli accepts, there will be cases where between the making of the possession order (whether suspended or outright) and its enforcement there has been a material change of circumstances such that a legitimate question will arise as to whether it is still proportionate to enforce the possession order. In such a case, the court will have to re-consider the section 15(1)(b) proportionality inquiry. That, however, is not this case. The Recorder was wrong to hold that Paragon’s claim to enforce the order must be the subject of such an inquiry.
In any event – though it was not necessary to decide – the District Judge at first instance had clearly, if not expressly, carried out a valid proportionality inquiry, satisfying all four elements.
Judge King found that, and explained why, these were proceedings against a tenant whose anti-social conduct had had, and was having, an intolerable impact upon his neighbours. A landlord’s claim to recover possession from such a tenant will plainly satisfy the first two steps in the inquiry. As to the third and fourth steps, the judge found that whilst Mr Neville had been given the opportunity to mend his ways, there was no basis for finding that he had done so or that, if the warrant was not executed, there would be no recurrence of his conduct in the future.
Once there has been a determination of the merits of possession, and of any Equality Act issues, in the making of a possession order – suspended or otherwise – this judgment makes clear that there would have to be a substantial change in circumstances that would require a fresh consideration on Equality Act grounds at warrant stage. Further acts that would amount to a breach of suspended possession order, without more, or without something different, will not merit a re-examination of a disability defence at warrant stage.