Aster Communities Ltd v Akerman-Livingstone

A disability-discrimination defence to possession proceedings may be determined summarily. The court should assess whether it is seriously arguable, assuming facts favourable to the tenant, and may dismiss it without a trial if it could not affect the result. Proportionality under section 15(1)(b) of the Equality Act 2010 involves the same broad exercise as Article 8 proportionality. Its cumulative stages need not all be completed. A social landlord’s interest in recovering scarce housing to fulfil allocation duties is ordinarily very strong, whether the landlord is a housing authority or housing association. Rare cases may succeed where disability creates complex housing needs that cannot fairly be met by alternative accommodation. Possession proceedings may be dealt with summarily at the first hearing under CPR 55.8.

The appellant occupied temporary accommodation provided by the respondent housing association while the local housing authority owed him homelessness duties. After the authority decided that its main housing duty had ended, the respondent brought possession proceedings. The appellant relied on disability discrimination under section 15 of the Equality Act 2010 and sought a full trial.

The Bristol County Court made an immediate possession order on 7 June 2013. Cranston J dismissed the appellant’s appeal on 14 October 2013. The central issue in the Court of Appeal was whether a disability-discrimination defence should be approached like an Article 8 defence and summarily dismissed where it was not seriously arguable. The appellant also sought permission to amend his defence to allege an assured shorthold tenancy.

The Court of Appeal dismissed both the appeal and the application to amend.

1. Burden and proportionality. Under section 15 of the Equality Act 2010, the tenant had to show facts from which discrimination could be inferred, while the landlord bore the burden of showing that its treatment was a proportionate means of achieving a legitimate aim. Section 136 did not prevent summary assessment.
2. Applicable approach. The approach in Manchester City Council v Pinnock [2011] 2 AC 104 and Hounslow LBC v Powell [2011] 2 AC 186 applied. The proportionality exercise may involve cumulative stages, but the court need not complete every stage if one is decisive. The twin aims of vindicating ownership and enabling the allocation and management of scarce housing stock were equally relevant in disability-discrimination cases.
3. Strength of the landlord’s interest. That interest will ordinarily outweigh the tenant’s disability claim, although the defence may succeed in rare cases involving considerable hardship or complex housing needs which cannot fairly be met otherwise. Disability may require the authority to take additional steps to secure alternative accommodation.
4. Procedure and landlord status. CPR 55.8 permits the court at the first hearing to decide whether a possession claim should proceed to trial. Expert medical evidence was unnecessary at that stage because the court could assume in the tenant’s favour that the required evidence would be available. The same approach applied to a housing association acting under an obligation to make accommodation available for persons for whom the authority owed housing duties.
5. Application. The appellant had been offered alternative accommodation, had opportunities to challenge the authority’s decisions, and would remain entitled to more limited homelessness assistance. His circumstances therefore did not outweigh the respondent’s interest, even assuming his disability prevented engagement with the housing process.
6. Amendment. Permission to amend the defence to allege an assured shorthold tenancy was refused. The benefit was small compared with the costs and prejudice to the respondent and other parties.

• Court of Appeal (Civil Division) — dismissed the appeal and the application to amend on 30 July 2014: [2014] EWCA Civ 1081.
• High Court, Queen’s Bench Division — Cranston J dismissed the appellant’s appeal against the possession order by order dated 14 October 2013.
• Bristol County Court — HHJ Denyer made an immediate possession order on 7 June 2013 after holding that the disability-discrimination defence was not seriously arguable.