Paragon Asra Housing Ltd v Neville

Where a court has determined that a possession order against a disabled tenant is a proportionate means of achieving a legitimate aim, the tenant cannot require the same proportionality inquiry when the landlord seeks enforcement. The order is binding, and lawful enforcement is implicit in the original determination.

A fresh inquiry is required where a material change of circumstances after the possession order raises a legitimate question whether enforcement remains proportionate. The substance of the court’s reasoning is decisive. A judgment may satisfy the structured proportionality inquiry even though it does not address each stage expressly.

A social landlord obtained a suspended possession order against an assured tenant whose disability contributed to serious anti-social conduct. The court accepted that the order was a proportionate means of achieving a legitimate aim under the Equality Act 2010.

After further breaches, the landlord obtained a possession warrant. District Judge King refused to conduct a fresh discrimination inquiry because the tenant alleged no material change of circumstances, and she dismissed his application to suspend the warrant. Mr Recorder Williamson QC allowed the tenant’s appeal and held that proportionality had to be reconsidered at the point of eviction.

The landlord brought a second appeal. The central issue was whether enforcement of an admittedly non-discriminatory possession order required a fresh proportionality inquiry in the absence of a material change of circumstances.

1. Appeal allowed. A court which makes a possession order after undertaking the proportionality inquiry under section 15(1)(b) of the Equality Act 2010 has determined that possession must be given and, if necessary, that the order may lawfully be enforced. The order binds the parties. Unless relevant circumstances materially change, the tenant has no right to require the court to reconsider the same issue at the enforcement stage. Recognising such a right would permit repeated and potentially vexatious applications: paras [50]–[52].

2. A material change between the making and enforcement of an outright or suspended possession order may raise a legitimate question whether enforcement remains proportionate. In that event, the court must reconsider the section 15(1)(b) inquiry. No such change was advanced in this case: para [52].

3. [2015] UKSC 15 did not require a fresh inquiry whenever enforcement was sought. That case concerned whether the making of an outright possession order was discriminatory. It did not address the distinct situation in which a court had already made an admittedly non-discriminatory order and the landlord later sought its enforcement: paras [42]–[51].

4. The proportionality inquiry asks whether the objective is sufficiently important, whether the measure is rationally connected to it, whether a less intrusive means could achieve it, and whether the impact on the tenant is disproportionate to the likely benefit. The court must undertake that exercise itself where it arises: paras [45]–[48].

5. Although unnecessary to the disposition, District Judge King’s findings satisfied that inquiry in substance. The tenant’s conduct had caused intolerable harm to neighbours. He had not provided cogent evidence that he had stopped abusing drugs, engaged with treatment or eliminated the risk of recurrence. Her conclusion that the situation could not be repaired established that enforcement was necessary and proportionate, despite the absence of an expressly structured analysis: paras [53]–[55].

6. The Recorder’s material orders were set aside, District Judge King’s ruling was restored, and the tenant’s application to suspend the warrant was dismissed. Asplin and Simon LJJ agreed with Sir Colin Rimer: paras [56]–[58].

1. Court of Appeal (Civil Division): The landlord’s second appeal was allowed. The Recorder’s material orders were set aside, District Judge King’s ruling was restored, and the tenant’s application to suspend the possession warrant was dismissed: [2018] EWCA Civ 1712.

2. County Court at Central London: Mr Recorder Williamson QC allowed the tenant’s appeal on 7 April 2017, quashed District Judge King’s ruling excluding a fresh consideration of sections 15 and 35 of the Equality Act 2010, and suspended the warrant pending a further hearing.

3. County Court: District Judge King ruled on 7 November 2016 that no fresh discrimination inquiry was required without a significant change of circumstances. On 17 November 2016 she found the alleged breaches proved and dismissed the application to suspend the warrant.

4. County Court: District Judge Smart made a suspended possession order on 11 April 2016 after finding that the order was reasonable and that the admitted disability discrimination was justified as a proportionate means of achieving a legitimate aim.