Barber v London Borough of Croydon

A local housing authority must keep its decision to recover possession under review throughout the proceedings. It must consider material facts that emerge after the notice to quit, including evidence about a tenant’s disability and the consequences of eviction.

Where anti-social behaviour is linked to disability, a policy requiring consultation with specialist agencies must be applied before possession is pursued. The authority must consider whether support or a less severe measure could prevent repetition. Failure to do so may make the decision one that no reasonable authority could regard as justifiable.

A successful public law defence requires dismissal of the possession claim. It does not prevent a fresh claim following proper consultation and reconsideration.

The appellant was a disabled and vulnerable non-secure tenant of the London Borough of Croydon. Following a single serious incident in which he threatened, spat at and kicked a council caretaker, the Council served notice to quit and commenced possession proceedings.

A psychiatric report subsequently concluded that the tenant’s conduct was related to his permanent mental disabilities and that eviction would place his health and life at considerable risk. The Council nevertheless continued the proceedings without consulting its mental health or social services agencies or considering a supervised acceptable behaviour contract.

HHJ Ellis in Croydon County Court made an immediate possession order. The appeal concerned whether the Council’s continuing decision to seek possession was unjustifiable on public law grounds or constituted disability discrimination.

1. Appeal allowed. The possession order was set aside and the action dismissed. Patten LJ delivered the judgment, with which Richards and Rix LJJ agreed.

2. A local authority’s recoverability decision is not confined to its initial decision to serve notice to quit. The authority must keep the case under review and consider relevant material received during the possession proceedings. Each decision to commence, continue or enforce proceedings is independently reviewable. This approach accords with Taylor v Central Bedfordshire Council [2009] EWCA Civ 613 and avoids retrospective invalidation of the original decision.

3. The Council’s anti-social behaviour policy recognised that conduct may result from mental illness or disability. It required referral to specialist mental health services so that vulnerability could be considered. Although the assault was serious, its categorisation as the most serious form of anti-social behaviour remained guidance rather than an inflexible rule. The Council had to analyse the cause of the behaviour and consider whether support or another intervention could prevent repetition.

4. The psychiatric evidence linked the incident to the tenant’s disability and described the grave consequences of eviction. In the absence of prior or subsequent misconduct, it was incumbent upon the Council to consult specialist agencies and consider an alternative such as a supervised acceptable behaviour contract. Proceeding without that consultation, and without giving proper weight to the psychiatric report, was wrong in principle. No housing authority reasonably addressing the circumstances could have made that decision.

5. The disability discrimination claim under section 24(1) of the Disability Discrimination Act 1995 failed. Following Lewisham LBC v Malcolm [2008] UKHL 43, the comparator was a non-disabled tenant who had behaved in the same way. Such a tenant would also have faced possession proceedings. The relevant error was instead the failure to consider whether the appellant should receive different treatment because his disability materially contributed to his behaviour.

6. The successful gateway (b) public law defence required dismissal of the action. A later possession claim would not be barred if consultation and reconsideration produced a fresh decision. The ordinary rules against relitigating decided issues must admit an exception where further proceedings have become necessary because the authority was required to take additional administrative steps to comply with its public law obligations.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The immediate possession order was set aside and the Council’s action was dismissed: [2010] EWCA Civ 51.

2. Croydon County Court: HHJ Ellis held that the tenancy was non-secure, rejected the public law and disability discrimination defences, and made an immediate possession order. The finding concerning the tenancy’s status was not appealed.