Swan Housing Association Ltd v Gill

The Court of Appeal allowed Swan Housing Association's appeal and granted the anti-social behaviour injunction sought under the Housing Act 1996 ss 153A and 153D. The court held that the district judge erred in finding that the respondent was disabled under the Equality Act 2010 without medical evidence and in treating the court as subject to the public sector equality duty under section 149. The court found that there was no proper basis for concluding that the public sector equality duty (section 149) or the discrimination provisions (notably sections 6, 15 and 35) operated to preclude the grant of the injunction on the facts before the judge. The Court of Appeal exercised its own discretion, taking the primary findings of nuisance and breach of tenancy as established, and granted the injunction.

This was an appeal by Swan Housing Association against the refusal by District Judge Dudley (Southend County Court, judgment 29 April 2013) of the appellant's application for an anti-social behaviour injunction (ASBI) in respect of breaches of an assured tenancy at 3A St Mary’s Road. The appellant relied on statutory injunctive powers under the Housing Act 1996 ss 153A and 153D to restrain various acts of nuisance and breaches of tenancy (blocking passageways, unauthorised structures, interference with communal access, unauthorised CCTV and business use).

The district judge found that the acts complained of were established but dismissed the application on the basis that the respondent suffered from Asperger’s syndrome, that Swan had failed to have due regard under the Equality Act 2010 (notably ss 35 and 149) and that granting an injunction would discriminate against or place the respondent at particular risk. The appellant challenged those conclusions on appeal.

• Nature of the claim: application for an anti-social behaviour injunction under Housing Act 1996 ss 153A and 153D.
• Issues framed: (i) whether the respondent was disabled within the meaning of the Equality Act 2010 (s 6 and Schedule 1) and whether acts arose in consequence of any disability (s 15); (ii) whether Swan had contravened the non-discrimination provisions (s 35) or the public sector equality duty (s 149); and (iii) whether the district judge had properly exercised his discretion in refusing the injunction.
• Procedural posture: appeal to the Court of Appeal with permission granted on 26 July 2013; appeal from District Judge Dudley, Southend County Court (judgment 29 April 2013).

The Court of Appeal accepted the respondent's concession that the judge had no proper evidential basis (notably medical evidence) for finding a disability and that the judge was wrong to treat the court as subject to the PSED. The court reviewed authorities relied on by the respondent (including R (Greenwich Community Law Centre) v Greenwich LBC and Pieretti v Enfield LBC) and concluded they did not support the proposition that the PSED was engaged in the absence of a protected characteristic established on the facts. The court emphasised the need for proper evidence (in particular medical evidence) before a finding of disability can be made or relied upon in the exercise of discretion. Having rejected the district judge’s equality-based reasoning as flawed, the Court of Appeal exercised its own discretion on the merits and granted the injunction sought by Swan Housing.

The judgment also notes the limited and contested nature of the respondent’s own evidence about Asperger’s syndrome and that the respondent denied that any alleged condition affected the conduct complained of. The court therefore did not consider remittal necessary and concluded it could properly determine the discretionary grant of the ASBI itself.

Appeal allowed. The Court of Appeal held that the district judge erred in finding the respondent disabled under the Equality Act 2010 without medical evidence and in treating the court as subject to the public sector equality duty. The judge’s refusal to grant the injunction was vitiated by those legal errors. The Court of Appeal, applying the correct legal approach and taking the primary findings of nuisance as established, exercised its own discretion and granted the anti-social behaviour injunction under the Housing Act 1996 ss 153A and 153D.

Appeal from District Judge Dudley, Southend County Court (judgment 29 April 2013). Permission to appeal granted by Lord Justice Patten on 26 July 2013. Judgment of the Court of Appeal: [2013] EWCA Civ 1566 (9 December 2013).