New Judgment: Aster Communities Ltd (formerly Flourish Homes Ltd) v Akerman-Livingstone  UKSC 15
11 Wednesday Mar 2015
On appeal from:  EWCA Civ 1081
The Supreme Court unanimously dismissed the appeal involving what was the correct approach for the Court to take in possession proceedings to defences based on unlawful disability discrimination, contrary to the Equality Act 2010, ss 15 & 35.
The appellant had been placed in housing association accommodation after being homeless in 2010. The local authority had a duty to provide him with secure accommodation under the Housing Act 1996 but that duty would cease if he refused an offer of suitable accommodation elsewhere. The appellant, suffering from chronic and severe mental ill health, had refused numerous attempts to find his permanent occupation and so he was notified in April 2011 that the duty had been discharged and sought possession of his housing association flat.
The appellant’s defence was that the possession order would amount to disability discrimination and breach his rights under the ECHR, art 8, which was supported by medical evidence of his vulnerability and need for intensive therapy. The Bristol County Court held that neither defence was arguable.
In dismissing the appeal the Court stated that a complaint of disability discrimination under the Equality Act 2010, s 15, in response to an eviction raises two key questions: (i) whether the eviction is ‘because of something arising in consequence of’ the complainant’s disability; and (ii) whether the landlord can show that the eviction is a proportionate means of achieving a legitimate aim. A court considering whether an eviction is proportionate when a defence under Art 8 is raised can assume that an order would meet the legitimate aims of vindicating a local authority’s property rights and of enabling the authority to comply with its statutory duties in the allocation and management of the housing stock available to it.
In the appellant’s case, the judge misdirected himself and adopted the wrong approach. He should have undertaken the proportionality assessment in relation to each defence, and he wrongly regarded this exercise as the same for the discrimination defence as for the Art 8 defence.
It stated however that there was no point in allowing the appeal and remitting it to the county court. The notice to quit that has since been served by the freeholder of the building meant that the respondent was in breach of its legal obligations and left the freeholder unable to proceed with the proposed sale.