Swan Housing Association Ltd v Gill

An anti-social behaviour injunction should not be refused on equality grounds without evidence establishing the alleged protected characteristic. An uncorroborated assertion of Asperger’s syndrome did not establish disability under the Equality Act 2010, and the court could not supply missing medical evidence from its own knowledge. The public sector equality duty was not materially engaged where the respondent had no relevant protected characteristic; the judicial function was separately outside that duty. Mental health could be considered in the statutory discretion, but proper medical evidence of its extent and effect was essential. The appeal was allowed and the injunction granted.

Swan Housing Association, landlord of an assured tenancy, sought an anti-social behaviour injunction against its tenant for nuisance, tenancy breaches and related conduct under the Housing Act 1996. District Judge Dudley found the primary acts established but dismissed the application after raising, of his own motion, issues under the Equality Act 2010. He found the tenant disabled by Asperger’s syndrome and concluded that the housing association had breached discrimination provisions and the public sector equality duty, despite the absence of medical evidence. On appeal, the tenant conceded that the disability and discrimination findings could not stand, but maintained that the public sector equality duty and the court’s general discretion justified dismissal.

The Court of Appeal allowed the appeal and granted the injunction in the terms sought. Coleridge J gave the principal reasons. Lewison LJ agreed that the lower court’s discretion was vitiated by legal error. Richards LJ was in broad agreement and preferred Lewison LJ’s more specific reasoning on the public sector equality duty.

1. Disability and discrimination. The lower judge was not entitled to find that the respondent had a disability within the Equality Act 2010 on the basis of an uncorroborated assertion of Asperger’s syndrome, without medical evidence, or by relying on a medical dictionary. The finding was unsupported. The related findings under sections 35 and 15 could not stand because the statutory discrimination provisions relied on required the respondent to be actually disabled.
2. Public sector equality duty. The lower judge wrongly treated the court itself as subject to section 149. Paragraph 3 of Schedule 18 excluded the judicial function. Even assuming that the housing association exercised public functions, the duty had no material application where the respondent had no relevant protected characteristic. Lewison LJ explained that R (oao Greenwich Community Law Centre) v Greenwich LBC [2012] EWCA Civ 496 concerned actual characteristics likely to arise in future policy-making, while R (Pieretti) v Enfield LBC [2010] EWCA Civ 1104 concerned further inquiry where the applicants were in fact disabled.
3. Discretion. Section 153A(2) of the Housing Act 1996 gave the court a broad discretion to consider all the circumstances, potentially including mental health. However, proper medical evidence of the condition’s extent and effect was essential before it could affect the injunction decision. The respondent’s refusal to provide medical notes and the absence of medical evidence left no proper basis for that argument.
4. Substitution and order. The lower court’s discretionary decision being legally flawed, the Court of Appeal was able to exercise the discretion itself. The primary acts were established, mediation had failed, and the injunction was conventional and focused on the alleged nuisance and tenancy breaches. The injunction was therefore granted.

1. Court of Appeal (Civil Division) — Allowed the appeal, set aside the Southend County Court’s decision and exercised its own discretion to grant the injunction.
2. Southend County Court — District Judge Dudley dismissed the housing association’s application for an anti-social behaviour injunction under the Housing Act 1996, relying on alleged disability, discrimination and public sector equality duty issues under the Equality Act 2010.