Manchester v Romano & Anor

In possession proceedings against a secure or assured tenant, the Disability Discrimination Act 1995 may apply where the conduct relied on for possession relates to mental impairment. The landlord must hold the opinion that possession action is necessary to avoid endangering an identified person’s health or safety, and that opinion must be objectively reasonable on the information available at the time. Actual injury or serious endangerment need not be shown, but trivial risks are disregarded. Health includes mental and social well-being. Disability includes substantial and long-term effects on normal day-to-day activities; inability caused by illness to learn to cope with stressful situations may engage the statutory learning limb. Both appeals were dismissed because the council’s justification was established on the evidence.

Two secure tenants of Manchester City Council faced possession proceedings founded principally on nuisance and annoyance under Ground 2 of Schedule 2 to the Housing Act 1985. Sharon Romano appealed after the county court dismissed her appeal against permission to enforce a suspended possession order. Yvonne Samari appealed against a possession order made after trial by Judge Armitage QC. The appeals raised the interaction between the statutory reasonableness requirement under section 84(2)(a) of the Housing Act 1985 and sections 22(3) and 24 of the Disability Discrimination Act 1995. The central issue was whether disability-related conduct made the council’s possession action unlawful, or whether it was justified as necessary to protect another person’s health or safety.

1. Disposition. Both appeals were dismissed. In Romano’s case, the evidence of frequent loss of sleep meant that Mr Schofield’s health was endangered. The council’s opinion would have been objectively reasonable if the statutory point had been raised at trial. The evidence also did not establish a causal connection between Romano’s impairment and the later noise from music and hammering.
2. Statutory interaction. Serving a notice seeking possession or initiating possession proceedings could amount to eviction or another detriment under section 22(3) of the Disability Discrimination Act 1995. If the reason related to disability, the conduct was unlawful unless justified under section 24. The court was bound by Clark v Novacold [1999] IRLR 318 and therefore applied the same statutory definition of discrimination in the premises context. A disability argument was preferably raised within the tenant’s case on reasonableness, although a counterclaim for declaratory or injunctive relief remained possible.
3. Justification. Section 24 imposed both a subjective and an objective requirement. The landlord had to hold the opinion that possession action was necessary to prevent an identified person’s health or safety from being endangered, and it had to be reasonable in all the circumstances to hold that opinion. The assessment concerned the facts known, or reasonably obtainable after sufficient inquiry, at the time of the discriminatory act. The court could not supply justification retrospectively, although later circumstances could affect the separate Housing Act reasonableness assessment. Actual damage was unnecessary. Health included physical, mental and social well-being, while trivial risks were disregarded. The Convention rights of both the disabled tenant and affected neighbours had to be considered.
4. Disability. The statutory definition required a qualifying mental impairment with a substantial and long-term adverse effect on normal day-to-day activities. In Samari’s case, the attempt to rely on perception of physical danger was unpersuasive, but an illness which prevented her from learning to cope with stressful situations and react appropriately could engage paragraph 4(1)(g) of Schedule 1. The ultimate statutory assessment was for the court, not the expert.
5. Samari’s case and guidance. The council had formed the requisite opinion that continuing the proceedings was necessary to protect Mrs Jones’s health, and it was reasonable to hold that opinion. The earlier notice might have supported a separate claim under section 25, but the Act did not invalidate the notice or provide a substantive defence once justification existed at the hearing. A warning letter was not itself a detriment, but should prompt early consideration of disability, health evidence and possible justification.

1. Court of Appeal (Civil Division): Heard appeals by both tenants and dismissed them on 29 June 2004.
2. Manchester County Court: Judge Armitage QC dismissed Romano’s appeal against enforcement of a suspended possession order and made a possession order against Samari.
3. Manchester County Court: District Judge Jones had permitted enforcement of Romano’s suspended possession order and refused to suspend the warrant.