Case Comment: Aster Communities Ltd (formerly Flourish Homes Ltd) v Akerman-Livingstone  UKSC 15
01 Friday May 2015
The Supreme Court has held that the court’s approach to proportionality in the context of a defence to possession proceedings based on disability discrimination is different to that which applies to a defence under Article 8, European Convention on Human Rights.
Under the Equality Act 2010, s 15, disability discrimination is defined as unfavourable treatment towards a person because of that person’s disability, where it cannot be shown that this unfavourable treatment is a proportionate means of achieving a legitimate aim. Eviction is unfavourable treatment for the purpose of s 15: s 35(1)(b).
In a claim for possession brought by a public authority, the European Convention on Human Rights, art 8, gives an occupier the right to challenge the proportionality of the eviction even if his right of occupation under domestic law has come to an end: Manchester CC v Pinnock  UKSC 45;  2 A.C. 104;  H.L.R. 7; Hounslow LBC v Powell and other cases  UKSC 8;  2 A.C. 186;  H.L.R. 23. In the majority of cases, the proposed eviction will be justified on the basis that it both vindicates public authorities’ rights of ownership and enables them to comply with their duties in relation to the allocation and management of their housing stock. The court should consider a potential Art 8 defence summarily and, only if the court is satisfied that it is seriously arguable that consideration of Art 8 could affect the order that the court might make should the issue be further entertained. The threshold for raising an arguable case on proportionality is a high one which will succeed in only a small number of cases.
Mr Akerman-Livingstone suffered from Prolonged Duress Stress Disorder and it was accepted that he suffered from a disability within the meaning of the 2010 Act. He applied to a local authority as a homeless person under Pt 7, Housing Act 1996. The claimant, a housing association, provided him with temporary accommodation in a flat in discharge of the authority’s duty to him under Pt 7.
A number of offers of accommodation were made to Mr Akerman-Livingstone including an offer of a tenancy of another property in the same road. He did not accept any of the offers. The authority decided that a suitable offer had been made and that their duty to him had come to an end. The association brought possession proceedings against him. Mr Akerman-Livingstone defended the claim both on the ground that it would not be proportionate to evict him under Art.8 and that his eviction would be disability discrimination.
At a preliminary hearing, the county court conducted a summary assessment of both defences in the same way. For both, the judge held that there was a presumption that possession was proportionate in light of the landlord’s exercise of its housing functions. Applying this test, neither defence was arguable. Mr Akerman-Livingstone unsuccessfully appealed to the Court of Appeal and further appealed to the Supreme Court.
The Supreme Court held that courts should approach a disability discrimination defence differently to an Art 8 defence. Although both defences require the court to consider proportionality, there are key differences between them. The protection offered by s 35 of the 2010 Act is a more specific, stronger right afforded to disabled occupiers over and above the Art 8 right. Whilst all occupiers are entitled to respect for their home under Art 8, through the 2010 Act Parliament had expressly provided for an extra right to equal treatment for people against discrimination in relation to eviction.
Further, the burden of proof is different. Where an Art 8 defence is raised by an occupier, it can be taken for granted that the public authority is seeking possession for two legitimate aims: vindicating their ownership rights and managing their housing stock. In contrast, these two aims alone are not sufficient to counter a disability discrimination defence. Once the possibility of discrimination is made out, the burden of proof is firmly on the landlord to demonstrate that there was no discrimination contrary to s 15(1)(a) of the 2010 Act, or that an order for possession is proportionate under s 15(1)(b), of the 2010 Act.
When considering a disability discrimination defence, a court should adopt a structured approach. In the particular case, the first issue was whether the Mr Akerman-Livingstone’s inability even to take up an offer of accommodation in the same street was something which arose out of his mental illness. If so, the next question was whether there was any lesser action that could have been taken and, if there was not, whether the harm to Mr Akerman-Livingstone of forcing him to move was outweighed by the benefit to the association, the authority and other homeless people in the area, and to the public generally, of being able to obtain possession of this particular property.
Notwithstanding the differences between the two defences, a court is able to conduct summary assessment of both. In relation to a disability discrimination defence, possession could be ordered summarily if the landlord could establish that: (i) the defendant had no real prospect of establishing that he was under a disability, (ii) it was plain that possession was not being sought “because of something arising in consequence of [the] disability”, or (iii) the claim and its enforcement plainly represented “a proportionate means of achieving a legitimate aim”. Because of the factual disagreements these points are likely to involve, applications for summary judgment in cases involving disability discrimination defences are likely to be rare.
Despite the fact that the courts below had applied the wrong approach, the Supreme Court dismissed the appeal. The association only had a lease of the flat and, after the county court hearing, the freeholder was now entitled to vacant possession. A possession order was now inevitable.
Republished with kind permission. This post originally featured on Arden Chamber’s website and can be found here.