Kevin Nightingale & Anor v Bromford Housing Association Limited

For discrimination arising from disability, unfavourable treatment is established where the disability-related matter had a significant influence on the decision. It need not be the predominant or sole reason. The same matter may be relevant both to causation and to the proportionality defence.

Where proportionality is assessed at trial, the court must consider the up-to-date evidential position at the hearing. The party relying on justification bears the burden of proving that the treatment remains a proportionate means of achieving a legitimate aim. A failure to adduce evidence of relevant conduct during a substantial period before trial may materially undermine that defence.

The appellants were tenants of a housing association property. The respondent served a notice under section 21 of the Housing Act 1988 after repeated complaints of anti-social and criminal behaviour involving members of the appellants’ family, including their disabled son, whose ADHD was said to contribute to his conduct.

The County Court made a possession order. It held that the decision was not significantly influenced by the son’s disability-related behaviour and, alternatively, that possession was a proportionate means of protecting neighbouring residents. The appeal concerned causation under section 15 of the Equality Act 2020, the relevance of the son’s conduct to proportionality, and whether proportionality had been assessed on the factual position at trial.

1. The appeal succeeded on the first and third grounds. The possession order was set aside and the matter was remitted to the County Court for reconsideration of the justification defence on up-to-date evidence. The second ground failed.

2. Under section 15(1)(a) of the Equality Act 2020, the relevant causation question is whether the disability-related matter had a significant influence on the unfavourable treatment. It is not necessary that the matter be the sole or predominant reason. The County Court had found that the son’s disability-related anti-social behaviour contributed to the decision not to renew the tenancy, but inconsistently concluded that the decision was not significantly influenced by it. Applying Nagarajan v London Regional Transport [2000] 1 AC 501, that conclusion was untenable.

3. The son’s behaviour was relevant to both causation and proportionality. The respondent’s later attempt to disavow reliance on that conduct did not prevent the court from considering it when assessing whether possession was a proportionate means of achieving the legitimate aim of protecting other residents.

4. The proportionality assessment had to reflect the factual position at the date of the hearing. That approach was supported by Aster Communities Ltd (formerly Flourish Homes Ltd) v Akerman-Livingstone [2015] AC 1399 and the discussion of it in Paragon Asra Housing Ltd v Neville [2018] EWCA Civ 1712, [2019] PTSR 34.

5. The County Court had relied on evidence ending in January 2020, although trial took place in January 2022. It failed to take into account the absence of evidence of any anti-social behaviour during the two years before trial. The burden remained on the respondent to establish proportionality. The remitted hearing was to consider evidence of the position in 2024, with updated written evidence limited to the proportionality defence.

• High Court (King's Bench Division): Appeal from the Northampton County Court allowed in part in substance. The possession order was set aside and the justification issue was remitted for reconsideration on up-to-date evidence.
• Northampton County Court: His Honour Judge Murdoch allowed the housing association’s possession claim and made a possession order on 21 March 2022, following judgment given on 18 March 2022.