Thiam v Richmond Housing Partnership (2025) EWHC 933 (KB)

This was an appeal of a possession order made by HHJ Luba KC. Ms Thiam was the assured tenant of Richmond Housing. A possession order had been sought on grounds 8 (rent arrears), ground 14 (anti social behaviour by the tenant’s son), ground 12 (breach of tenancy in failure to allow access for inspection and repairs), and ground 13 – the condition of the premises had deteriorate by acts of waste, neglect and default.

The possession claim proceeded on the basis that Ms Thiam lacked litigation capacity and the Official Solicitor was appointed as litigation friend.

At first instance, all four grounds were held to have been made out. Rent arrears were some £18,000. The ASB by the tenant’s son was made out on the evidence. On ground 12, the evidence was that the tenant had not given access. On Ground 13, the first instance court held

Ground 13 of the statutory grounds in Schedule 2 is concerned with the condition of the property. The tenant is responsible for maintaining the property to the extent that it is not in a deleterious condition by dint of their own act or neglect. This is a case in which Ground 13 is manifestly satisfied. It was not necessary to conduct a site visit of the property or to turn to the detail of any inspection report. One can readily see from the photographs and videos made available to the court that the property is in appalling condition, both internally and externally. The front and rear gardens are full of not only overgrown and unkempt vegetation but also massive number of black bags and other discarded household items.

Because of her delusion, the [tenant] believes that some or all of this material is important for the purposes of her business in reselling second-hand clothes. Whatever the nature of the delusion, the simple fact of the matter is that the premises are grossly unsightly. They are, in the relevant weather conditions, smelly. They provide harbourage for vermin and they are grossly unsightly.

Ms T’s formal diagnosis was following an expert report in the course of proceedings, though social services had previously had concerns.

On the relation between Ms T’s disability and the facts of the possession claim, the first instance court found

She suffers from a wider range of delusional disorders associated with her schizophrenia and these explain other facets of the conduct which has led to her landlord’s claim for possession. For example, in relation to rent arrears, she believes, as one sees from the way in which her defence and counterclaim is pleaded, that she is, in some sense, a self-employed businesswoman engaged in transactions for the sale and resale of clothing and other items. That is a complete delusion. Anyone can see at a moment’s glance that she is hoarding junk and as her son graphically puts it, cannot even sell this junk at car boot fairs. She has no insight. Exactly the same can be said of the importance of the conduct of her son in behaving himself at the property and in relation to compliance with her obligations under the conditions of her tenancy. With the benefit of the advice of the assessor, having regard to the disabling conditions in this case, I have not the least hesitation in finding that there is the necessary causal link particularly for the purpose of s.15 of the Act.

Ms T also advanced a defence and counterclaim of disability discrimination, on the basis that the possession claim was unjustified within the meaning of section 15 Equality Act 2010.

The first instance court dd not accept this, finding that the claim had a legitimate aim and was proportionate.

On appeal, Ms T argued that the Judge had erred in not finding that:

1. RHP did not, when commencing the possession proceedings, recognise that the tenant’s hoarding was a symptom of her disability;
2. RHP had not put in place “specialist intervention”; and
3. RHP had not made an application to the Court of Protection, and did have the power and skill to do so.

The High Court dismissed the appeal.

On ground 1, RHP’s ‘justification consideration’ had not expressly addressed the tenant as being disabled, but had considered her vulnerable and did address whether eviction was proportionate. The Court’s consideration of proportionality was objective, on the substance, regardless of whether RHP had identified a link between the tenant’s disability and the actions giving rise to the possession claim.

The proportionality issue is objective and in circumstances such as those in the present case must approached on the assumption that there was a connection between the claimant’s disability and the state of affairs the alleged discriminator is seeking to address. The steps taken (or not taken) by the alleged discriminator are to be assessed on their own terms. Whether at the time he acted (or failed to act) the alleged discriminator accepted the connection existed will not affect the assessment of what he did or what he failed to do since that is essentially a matter of process not substance and proportionality is concerned with substance. An alleged discriminator who recognised the connection ought not (for the purposes of the application of section 15(1)(b) of the 2010 Act) be better-placed than one who did not. To use the shorthand used in the section 15 itself, where the unfavourable treatment afforded by A to B is in response to things that B has done, A’s unfavourable treatment of B is capable of being a proportionate means of achieving a legitimate aim even if A does not consider that B’s actions were in consequence of a disability.

The issue was what RHP did and might have done further. Ground 1 failed.

On ground 2, RHP had been to considerable lenghts to seek to involve other agencies, including social services.

I do not consider that the obligation to act proportionally imposed by section 15(1)(b) of the 2010 Act required RHP itself to engage specialist help for the tenant. Taking such a step would go well beyond anything ordinarily or, in the circumstances of this case, reasonably within the ambit of a landlord and tenant relationship. It was entirely consistent with the section 15(1)(b) obligation for RHP to submit that interventions of that sort should be the responsibility of the social services department rather than the landlord. Mr Strelitz, counsel for RHP, also pointed to the likely cost of such specialist services and the finite resources of a social landlord such as RHP. That too is a material point.

In any event, a specialist service would have been likely to be futile as they rely on consent of the tenant, which, the expert report showed, would not have been forthcoming. Ground 2 failed.

On ground 3, the first instance Judge had found

“… Mr Grütters offered a second alternative. It was that when faced with a person in these circumstances, what was really needed was an assessment of more general incapacity and then an application to the Court of Protection. However, this claimant landlord does not have the skills or resources to produce such an assessment and make such an application. The statutory agencies do and the statutory agencies are now, at last and encouraged by the witness summons process which has brought them to this court, at least contemplating the possibility of such an application if a process of final attempts at engagement fail.”

The High Court agreed that RHP could not be expected to make an application to the Court of Protection as a needed step before proportionately seeking possession.

First, any such application to the Court of Protection would have been speculative. Any chance of success before the Court of Protective would be contingent on a conclusion that the tenant lacked capacity in a relevant respect. Such a conclusion would not have been close to a foregone conclusion. Although in these proceedings the tenant has come (since January 2023) to be represented by the Official Solicitor, there were Family Court proceedings that took place in 2021 and in those proceedings there was no question that the tenant lacked capacity. Even if the issue of capacity were overcome it is unclear what order might have been sought on an application to the Court of Protection made by RHP. (…)

The nature of the application to the Court of Protection that would therefore have been necessary leads to the second reason why this ground of appeal fails. The course now suggested as one required by section 15(1)(b) to the 2010 Act would have required RHP to incur significant expenditure on litigation (legal costs and no doubt also the costs of expert evidence) in pursuit of an exercise that was speculative. These were the matters averted to by the Judge at paragraph 67 of his judgment. That would go well beyond any step that could legitimately be expected of a landlord and well beyond anything that could reasonably be considered as a requirement of a proportionate approach on the facts of this case. The third ground of appeal also fails.

Appeal dismissed.