Aster Communities Ltd (formerly Flourish Homes Ltd) v Akerman-Livingstone

This appeal concerns the correct approach where a defendant in possession proceedings raises a defence of disability discrimination under the Equality Act 2010 (notably section 15 and section 35(1)(b)). The Supreme Court held that the procedural and substantive approach to an Equality Act discrimination defence is not the same as the approach to an article 8 human‑rights defence (as explained in Pinnock and Powell). Where a defendant shows facts from which discrimination might be inferred, the burden under section 136 shifts to the landlord to justify the treatment as a proportionate means of achieving a legitimate aim, applying the structured proportionality analysis derived from EU law (objective, rational connection, necessity/least intrusive means, overall balance).

The Court recognised that summary disposal remains possible where the landlord can show (i) the defendant has no real prospect of establishing disability, (ii) possession is plainly not sought because of something arising in consequence of the disability, or (iii) possession is plainly a proportionate means of achieving a legitimate aim. Those cases will be rare. Applying these principles to the facts, the Court found that Judge Denyer erred in treating the section 35(1)(b) defence as if it were an article 8 defence and that the case should have been remitted to consider the defence on its merits. However, subsequent events made a full rehearing pointless because vacant possession would inevitably be ordered; accordingly the appeal was dismissed.

Background and parties: The appellant was a disabled occupier of a one‑bed ground‑floor flat provided to him as temporary accommodation under the Housing Act 1996 by a local authority placement. The respondent is a registered social landlord (formerly Flourish, later Aster Communities) which sought possession after the local authority decided its homelessness duty had been discharged. The appellant raised defences including disability discrimination under the Equality Act 2010, article 8 and a public law challenge.

Procedural history: The claim began in the county court. District Judge Smith directed that the case proceed to a contested hearing. The case was later transferred and listed for trial; it was then vacated when the local authority renewed duties. After further events the respondent sought to reinstate the possession claim. His Honour Judge Denyer QC summarily determined that there was no arguable discrimination defence and ordered possession. That decision was upheld by Cranston J and by the Court of Appeal ([2014] EWCA Civ 1081). The appellant appealed to the Supreme Court.

Issues: (i) Whether the courts should adopt the same summary approach to an Equality Act unlawful discrimination defence in possession proceedings as to an article 8 proportionality defence; (ii) if not, what approach should be taken to discrimination defences, including the role of the burden of proof under section 136 and the scope for summary disposal under the Civil Procedure Rules.

Court’s reasoning: The Court analysed the substantive differences between article 8 and the Equality Act. Section 35(1)(b) and section 15 afford a specific, extra right against discrimination that applies to private and public landlords, and contains express burden of proof rules (section 136). Proportionality under section 15 is the four‑fold structured exercise familiar from anti‑discrimination law (importance of objective, rational connection, necessity/least intrusive means, and overall balance). While some factual and policy matters (such as the landlord’s aims in managing scarce social housing) can be taken for granted in many article 8 cases, they cannot be assumed away in discrimination cases where Parliament has created special protections for disabled persons.

The Court held that summary disposal remains available but is exceptional: it is appropriate only where the landlord shows there is no real prospect the defendant can prove disability, that the eviction is plainly not because of something arising in consequence of the disability, or that the eviction is plainly proportionate. Applying the correct test, Judge Denyer had erred in treating the section 35(1)(b) defence as if it were an article 8 defence and should have considered the defence on its merits. Nonetheless, the Supreme Court concluded that subsequent developments meant a full rehearing would be futile because vacant possession would inevitably follow; therefore the appeal was dismissed.

Wider implications: The judgment clarifies that discrimination defences in possession proceedings require the structured proportionality analysis under the Equality Act and that the statutory burden of proof must be respected. Summary disposal is possible but will often be inappropriate; those raising discrimination defences will more readily be entitled to have their factual case examined than occupiers raising article 8 defences in the ordinary run of social‑housing possession claims.

The appeal was dismissed. The Supreme Court held that defences based on the Equality Act 2010 (in particular disability discrimination under section 15 and the eviction‑specific prohibition in section 35(1)(b)) must be treated differently from article 8 defences: the court must apply the structured proportionality analysis and the statutory burden of proof (section 136). Summary disposal remains possible but only in limited circumstances. Although the county court judge applied the wrong approach and the matter should have been remitted to consider the discrimination defence on its merits, subsequent events made a full rehearing futile and the appellate court dismissed the appeal.

County Court (Yeovil/Bristol): District Judge Smith (preliminary directions); His Honour Judge Denyer QC summarily ordered possession (June 2013). Permission to appeal granted. Cranston J dismissed the appeal at first instance. Court of Appeal dismissed the further appeal: [2014] EWCA Civ 1081, [2014] 1 WLR 3980. Appeal to the Supreme Court: [2015] UKSC 15.