Paragon Asra Housing Ltd v Neville

The Court of Appeal held that where, at the hearing which produced a suspended possession order, the court has itself carried out the Equality Act 2010 section 15 proportionality inquiry and found that the possession order was not discriminatory, the landlord is not required to re-open that inquiry merely when seeking to enforce the order. The court explained that a fresh consideration under sections 15 and 35 of the Equality Act will be required only if there has been a material change of circumstances between the making of the order and its enforcement. The court relied on the statutory framework in the Housing Act 1988 (notably sections 7, 9 and 9A and Schedule 2) and the Equality Act 2010 (notably sections 15 and 35) and considered the Supreme Court's decision in Akerman-Livingston v Aster Communities Ltd, rejecting the Recorder's view that Aster required a full re-visitation of the proportionality exercise at enforcement in every case. The Court of Appeal restored the earlier ruling of District Judge King refusing to suspend the warrant because no material change of circumstances had been shown and, in any event, her substantive findings showed that enforcement would be proportionate.

Background and nature of the claim:

• Paragon (successor in title to the Trust) sought possession of a flat occupied by Mr Neville for breaches of tenancy involving nuisance and harassment; proceedings were brought under the Housing Act 1988 relying on Grounds 12 and 14 of Schedule 2. Mr Neville admitted breaches but defended on the ground that the conduct arose in consequence of an Equality Act 2010 protected disability and that eviction would amount to discrimination under sections 15 and 35 of the Equality Act.

Procedural history:

• District Judge Smart (11 April 2016) made a possession order but suspended it; the order recorded that the judge had accepted that Mr Neville had a protected characteristic and had concluded that making and suspending the possession order was not discriminatory because enforcement would be a proportionate means of achieving a legitimate aim.
• After further alleged breaches, Paragon obtained a warrant for possession. Mr Neville applied to suspend execution of the warrant. District Judge King (7–17 November 2016) refused suspension, holding that the Equality Act issues had been considered when the suspended order was made and that, absent any material change of circumstances, the re-opening of that inquiry would be improper; she nevertheless found the breaches proved and concluded enforcement was appropriate.
• Mr Recorder Williamson QC allowed Mr Neville’s appeal against Judge King’s preliminary ruling (7 April 2017), quashed the ruling and suspended the warrant so that the discrimination issue could be determined at a further hearing. Paragon obtained permission to pursue a further appeal to the Court of Appeal.

Issues before the Court of Appeal:

1. Whether, when enforcing a previously made suspended possession order, the court must in every case re-conduct the section 15(1)(b) proportionality inquiry under the Equality Act or whether the inquiry need only be revisited if there has been a material change of circumstances since the suspended order; and
2. Whether Judge King’s substantive findings at the enforcement hearing amounted, in substance, to a proper assessment under section 15 and therefore answered any discrimination challenge.

Court’s reasoning and conclusion:

• The court acknowledged that the landlord’s duties under the Equality Act are continuing, but concluded there is no right for a tenant to require the court to relitigate the same proportionality questions at the enforcement stage absent a material change of circumstances. To allow otherwise would invite repeated, vexatious applications.
• The court reviewed and distinguished the Supreme Court decision in Akerman-Livingston v Aster Communities Ltd, holding that Aster does not require a fresh proportionality inquiry at enforcement in every case where the original possession order has already addressed discrimination. Aster remains important on how to approach discrimination defences, but does not displace the principle that earlier judicial findings stand unless a relevant change is shown.
• The Court of Appeal further held that, on the facts, Judge King’s substantive findings (in relation to evidence of recurrence, failure to engage with treatment, and the severe impact on neighbours) amounted in substance to a conclusion that enforcement would be a proportionate means of achieving a legitimate aim.

Remedy: The Court of Appeal allowed Paragon’s appeal, restored Judge King’s ruling of 7 November 2016 and dismissed Mr Neville’s application to suspend the warrant.

Appeal allowed. The Court of Appeal held that where a court making a suspended possession order has considered and rejected a disability discrimination defence under section 15 of the Equality Act 2010, the landlord need not submit to a full re-run of that proportionality inquiry when seeking to enforce the order unless there has been a material change of circumstances. The court restored the District Judge’s refusal to suspend the possession warrant and found that, in substance, the District Judge had reached a proportionality conclusion supporting enforcement.

County Court (Kingston upon Thames / Central London): possession claim and suspended possession order (District Judge Smart) 11 April 2016; further breaches, warrant issued; application to suspend warrant heard by District Judge King (7–17 November 2016) who refused suspension; Recorder Williamson QC allowed Mr Neville’s appeal and suspended the warrant (7 April 2017); Henderson LJ granted Paragon permission to appeal to the Court of Appeal (4 January 2018); Court of Appeal ([2018] EWCA Civ 1712) allowed Paragon’s appeal 26 July 2018.