Aster Communities Ltd v Akeman-Livingstone

The Court of Appeal dismissed the appellant's challenge to summary possession proceedings brought by his social landlord. The court held that a defence under section 15 of the Equality Act 2010 (discrimination arising from disability) can be the subject of a summary assessment in possession proceedings where the defence is not seriously arguable. The proportionality inquiry under section 15 was treated as materially the same exercise as the proportionality inquiry under Article 8 considered in Pinnock and Powell, with the social landlord's "twin aims" (vindication of ownership and enabling fulfilment of housing allocation duties) carrying substantial weight. Section 136 of the Equality Act 2010 merely sets threshold factual matters for the claimant to raise; it does not prevent summary disposal where the defence is plainly unsustainable. CPR 55.8 permits the court, at the first hearing, to direct summary disposal of possession claims. On the facts, the appellant could not show the degree of hardship or unique housing need that would outweigh the countervailing public interest in re‑allocating the accommodation.

Background and parties: The appellant, Mr Jonathan Akerman-Livingstone, suffered from a severe prolonged stress disorder and occupied temporary accommodation owned by Aster Communities Ltd (Aster) after Mendip District Council (MDC) accepted a homelessness duty under Part VII of the Housing Act 1996. MDC later considered its main housing duty discharged and required Aster to seek possession so the property could be reallocated to others owed the statutory duty.

Procedural history: Aster obtained a possession order in the Bristol County Court (HHJ Denyer) by summary disposal on 7 June 2013. Cranston J dismissed the appellant's appeal on 14 October 2013. The appellant appealed to the Court of Appeal.

Nature of the claim / relief sought:

• The appellant resisted possession on the basis that the institution and pursuit of possession proceedings amounted to unlawful discrimination arising from his disability under section 15 of the Equality Act 2010; he sought a full trial of that defence.

Issues framed by the court:

• Whether a disability discrimination defence under section 15 EA 2010 in possession proceedings must proceed to full trial or can be summarily disposed of where it is not seriously arguable.
• Whether the proportionality exercise under section 15 EA 2010 is to be approached differently from the Article 8 proportionality test applied in Pinnock and Powell.
• Whether CPR 55.8 permits summary disposal of such defences in possession claims and whether any distinction arises between a local housing authority and a housing association acting for it.

Court's reasoning and decision: The Court of Appeal held that the proportionality exercise under section 15 EA 2010 is materially the same as the proportionality inquiry under Article 8 considered in Pinnock and Powell. The court may make a summary assessment of the defence and only proceed to trial where the defence is seriously arguable. The "twin aims" of a social landlord (vindication of ownership and enabling the landlord to fulfil statutory allocation/management duties) carry substantial weight and will outweigh disability‑based interests in most cases. Section 136 shifts the evidential burden on threshold factual matters but does not prevent summary disposal. CPR 55.8 enables a court at the first hearing to decide whether a trial is needed in possession claims without recourse to CPR 24 summary judgment procedure. On the facts, including evidence that possession was required so MDC could reallocate temporary accommodation and that MDC had offered alternative housing which the appellant did not pursue, the appellant had not shown such exceptional hardship or irreplaceable housing need as would make the defence seriously arguable. The Court also refused a late application to amend to plead an assured shorthold tenancy: the prejudice to others outweighed any small benefit to the appellant.

Wider context: The court acknowledged that in rare cases disability discrimination defences might succeed but emphasised their exceptional nature in the social housing possession context given competing public duties and limited housing stock.

Appeal dismissed. The court held that a defence under section 15 of the Equality Act 2010 can be summarily assessed in possession proceedings and should be allowed to proceed to trial only if it is seriously arguable. The proportionality inquiry under section 15 is treated similarly to the Article 8 proportionality test in Pinnock and Powell, and the social landlord's twin aims usually outweigh the tenant's interests. On the facts the appellant's discrimination defence was not seriously arguable and summary possession was appropriate; the application to amend the defence to plead an assured shorthold tenancy was refused as unduly prejudicial.

Possession proceedings were heard in Bristol County Court (HHJ Denyer) where summary disposal was ordered on 7 June 2013. An appeal to Cranston J in the High Court (Bristol District Registry) was dismissed by order dated 14 October 2013. The defendant then appealed to the Court of Appeal, which delivered judgment as [2014] EWCA Civ 1081 on 30 July 2014.