Akerman-Livingstone v Aster Communities Limited

A possession claim cannot succeed if eviction would constitute disability discrimination under sections 15 and 35(1)(b) of the Equality Act 2010. Unlike an article 8 defence, such a defence attracts no presumption that summary disposal is appropriate.

The court must itself apply structured proportionality. It must examine the importance of the landlord’s aim, rational connection, necessity and whether a fair balance exists between that aim and the disadvantage to the disabled occupier. Once facts capable of establishing discrimination are shown, the statutory burden passes to the landlord. Summary disposal remains possible where disability or the required causal connection has no real prospect of proof, or where justification is plain, but such cases are likely to be rare.

The appellant, who had a severe mental disability, occupied temporary accommodation supplied through arrangements between the local housing authority and the respondent social landlord. After he declined offers of alternative accommodation, the landlord obtained a possession order. He contended that the eviction was unfavourable treatment because of something arising from his disability and was unlawful under sections 15 and 35(1)(b) of the Equality Act 2010.

The county court summarily rejected his discrimination and article 8 defences by applying the high threshold governing article 8 possession cases. Cranston J dismissed an appeal. The Court of Appeal also dismissed the appeal in Akerman-Livingstone v Aster Communities Limited [2014] EWCA Civ 1081, holding that the same proportionality approach applied to both defences.

The central issue before the Supreme Court was whether an Equality Act discrimination defence could be treated procedurally and substantively in the same way as an article 8 defence. Later undisputed events also raised the question whether remittal for a full trial would serve any purpose.

1. Disposition. The Supreme Court unanimously dismissed the appeal. The courts below had applied the wrong legal approach, but later undisputed events meant that a full trial would inevitably produce a possession order. Remittal would therefore be unjust and pointless.

2. Distinct statutory protection. Per Lady Hale and Lord Neuberger, with whom the other members of the court agreed on the relevant principles, sections 15 and 35(1)(b) of the Equality Act 2010 confer protection which is distinct from, more specific than and stronger than article 8 protection. It applies to public and private landlords. A disabled occupier may have to be treated more favourably than a non-disabled occupier. If eviction is sought because of something arising in consequence of disability, no comparator is required and the landlord must justify the eviction.

3. Structured proportionality. The court must conduct the proportionality assessment itself; its role is not analogous to judicial review. It must consider whether the landlord’s objective is sufficiently important, whether eviction is rationally connected to that objective, whether a less drastic measure could achieve it, and whether eviction strikes a fair balance between the objective and the disadvantage to the disabled occupier. The usual aims of vindicating property rights and managing social housing may be accepted and given substantial weight, but they do not automatically outweigh equality rights.

4. Burden and procedure. Under section 136 of the Equality Act 2010, once facts are established from which discrimination could be found, the landlord must prove that the causal requirement is absent or that eviction is justified. Under rule 55.8(2) of the Civil Procedure Rules 1998, a discrimination defence should proceed where it genuinely disputes the claim on apparently substantial grounds. Summary disposal remains permissible if the occupier has no real prospect of establishing disability or causation, or if proportionality is plain. Such cases are likely to be rare because disability, causation and proportionality commonly require factual or expert evidence.

5. Application. Per Lord Wilson, the landlord’s need for vacant possession had become compelling because its lease had ended and it was obliged to return the flat to the freeholder. Eviction was rationally connected to that aim and no less intrusive means was available. Although eviction seriously disadvantaged the appellant, the landlord’s need prevailed in the final balance. Lords Clarke and Hughes agreed, and Lady Hale and Lord Neuberger agreed that those circumstances made a possession order inevitable.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously. The lower courts’ equation of an Equality Act defence with an article 8 defence was rejected, but the possession order was left undisturbed because a full trial would inevitably reach the same result: [2015] UKSC 15.

2. Court of Appeal: The further appeal was dismissed. The court held that the proportionality approach under the Equality Act 2010 was the same as under article 8: [2014] EWCA Civ 1081.

3. High Court: Cranston J dismissed the appeal from the county court, holding that the housing context justified applying the article 8 approach to the discrimination defence.

4. County Court: His Honour Judge Denyer QC summarily rejected the article 8 and disability discrimination defences and made a possession order.