Your Questions Answered: Stronger defence, Article 8 ECHR or Equality Act 2010?
Author: Bukola Aremu
Applies to: England and Wales
A recent case has held that a defence raised under the Equality Act 2010 (EA) is to be treated differently from, and is greater than, a defence raised under Article 8.
The Article 8 defence used in possession proceedings has become a familiar plea used by defendants since the cases of Manchester v Pinnock (2010) and Birmingham City Council v Frisby (2011). These cases confirmed that defences raised under Article 8 of the European Convention of Human Rights 1950 (ECHR) in residential possession proceedings are entitled to an assessment of proportionality. This was the case even though domestic legislation required the court to make an eviction order without any regard for the defendants' personal circumstances or the reason for seeking possession in the first place.
This means against a local authority's ownership rights and public duties in relation to the allocation and management of its housing stock, the court should weigh up any factual objections that might be raised by the defendant and what he has to say about his personal circumstances. Only if he puts forward an arguable defence can a case be adjourned for further consideration of the issues of lawfulness or proportionality. If that test is not met, the order for possession should be granted.
Should the court take the same approach if discrimination under the EA is raised as a defence?
In the recent case of Aster Communities Ltd (formerly Flourish Homes Ltd) v Akerman-Livingstone the tenant suffered from Prolonged Duress Stress Disorder (PDSD) following abuse as a child, which constituted a disability under the EA. He was housed in temporary accommodation on a one week periodic tenancy under the local authority's homelessness duties. There were 11 bids made on his behalf for various flats, several of which were successful, and one of which was on the same street as his temporary accommodation, but he refused to move. His position was that he could not move until he had therapy for his PDSD, but because of his PDSD, he was unable to engage in any therapy. An expert psychologist said that he had seldom seen anyone in more need of therapy than the tenant, and that his behaviour in refusing to move was a result of his disorder.
The landlord sought possession. The tenant said that the proceedings amounted to disability discrimination under the EA and that they violated his rights under article 8, because his inability to move was due to his mental illness. He said a different approach needed to be taken under the EA.
Following Pinnock, the court at first instance determined that, as neither defence was seriously arguable, it could make an immediate possession order. The Court of Appeal also dismissed the defendant's argument that disability discrimination defences were not to be treated in the same way as article 8 defences.
However, the Supreme Court unanimously held that the protection afforded by the EA was different from the rights protected by article 8. It extended to all disabled occupiers, irrespective of the identity of the landlord, and was a greater right. The EA gave disabled people rights in respect of their accommodation that were different from, and additional to, the rights of non-disabled people. A landlord could evict a disabled tenant because of something resulting from the tenant's disability, but only if he could show that eviction was a proportionate means of achieving a legitimate aim. The test was whether the claim was genuinely disputed on grounds that appeared to be substantial. Notwithstanding this, the appeal was dismissed on the basis that-although usually when a decision of the lower courts was reversed - it would be remitted to the lower court for re-determination, were this to happen then a possession order would be inevitable in any case.
The outcome of Aster Communities suggests that a defence brought under the EA in relation to disability discrimination may be a stronger defence to a possession claim than human rights. However, given the requirements of the test set out in the case, succeeding using this defence is likely to be a rarity.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.