S v Floyd & Anor

A tenant cannot resist a mandatory possession claim merely by relying on disability or its effect on the ability to pay rent. The Disability Discrimination Act 1995 addresses unlawful less favourable treatment for a reason relating to disability; it does not create a general defence to lawful enforcement of rent obligations. A disability-related defence may arise where the landlord’s own reason for the impugned treatment relates to the disability and the treatment is unjustified. An adjournment of a mandatory possession claim is available only in exceptional circumstances. Housing-benefit delay alone is insufficient. A capacity adjournment requires material suggesting inability to understand the issues in the particular proceedings.

S was an assured tenant of a flat let by Jacqueline Floyd. Following substantial rent arrears, Mrs Floyd brought possession proceedings under Grounds 8, 10 and 11 in Schedule 2 to the Housing Act 1988. District Judge Fawcett made a possession order and ordered payment of £7,920 in admitted arrears. His Honour Judge Simpkiss dismissed S’s appeal, although granting permission to appeal.

Before the Court of Appeal, S challenged the refusal to adjourn the possession hearing. He relied on possible lack of capacity, exceptional circumstances connected with housing benefit, and a possible defence under the Disability Discrimination Act 1995. The central issues were whether an adjournment was required and whether disability discrimination could affect a claim based on the mandatory rent-arrears ground.

1. Disposition. The appeal was dismissed on all three grounds. The judgment was delivered for the court, to which all members contributed.
2. Capacity. Capacity under CPR Part 21 is issue-specific. The question is whether the party can understand, with proper explanation from legal advisers and experts where necessary, the issues on which consent or a decision may be required in the proceedings. The material before the District Judge showed no inability to understand the straightforward issues. S’s own documents and his participation at the hearing indicated intelligent engagement. An adjournment was therefore unnecessary.
3. Mandatory possession and adjournment. Ground 8 under section 7(3) of the Housing Act 1988 is mandatory where the statutory rent-arrears conditions are met. The court nevertheless retains a power to adjourn, but only in exceptional circumstances: North British Housing Association v Matthews [2004] EWCA Civ 1736. Non-receipt of housing benefit, even through maladministration, is not by itself exceptional. No such adjournment was sought before the District Judge, and S admitted the arrears and said he had no defence.
4. Disability discrimination. The Disability Discrimination Act 1995 is concerned with unlawful discrimination, not disability alone. Lawful eviction is not prohibited by section 22(3)(c). The relevant question is whether the landlord treated the disabled tenant less favourably for a reason relating to disability and could not justify that treatment under section 24. The relevant reason is the landlord’s reason, not merely the effect of disability on the tenant’s ability to meet legal obligations.
5. Authorities and application. Manchester City Council v Romano [2004] EWCA Civ 834 concerned disability as a factor in a discretionary possession jurisdiction and was properly distinguished. Lewisham London Borough Council v Malcolm [2007] EWCA Civ 763 concerned a contractual possession right and a finding that the conduct leading to loss of security related to disability. It did not govern a mandatory Ground 8 claim. S had attributed the arrears to his dispute about rent increases, not to disability. No arguable discrimination defence arose. The court nevertheless observed that authoritative clarification of the legislation’s scope in possession proceedings was urgently needed.

• Court of Appeal (Civil Division): dismissed S’s appeal from the decision of His Honour Judge Simpkiss.
• Brighton County Court, His Honour Judge Simpkiss: granted permission to appeal but dismissed S’s appeal from the possession order.
• Brighton County Court, District Judge Fawcett: ordered S to give possession of the flat and to pay £7,920 in admitted rent arrears.