Proportionality and the Equality Act – what you need to know
22nd August, 2014
Following the 2010 case of Manchester City Council v Pinnock, we are all aware that possession proceedings, where proportionate, can defeat a tenant's defence raised under Article 8 of the Human Rights Act 1998, and will do so in all but highly exceptional cases.
The recent case of Aster Communities Limited v Akerman-Livingstone tells us that the Courts adopt a similar approach to proportionality when dealing with a tenant’s Equality Act defence.
What happened in the case?
Under The Housing Act 1996, a local housing authority must provide accommodation to a person who is eligible for assistance, has a priority need and is unintentionally homeless.
In this case, Mr AL suffered from a severe duress stress disorder. The council secured him temporary accommodation with a housing association until they were able to provide him with a more permanent solution. Once offered the chance to move to permanent accommodation, Mr AL was unable to cope with making a decision as to which property he should occupy.
The council considered that it had satisfied this statutory duty. The housing association brought possession proceedings against Mr AL, which he defended, arguing that he had been discriminated against on account of his disability. Such discrimination is only justifiable where it is found to be a proportionate means of achieving a legitimate aim.
What did the Court say?
In order to progress with this Equality Act defence, the Court considered whether Mr AL had a “seriously arguable case” – the threshold referred to by the Court in the Pinnock case.
The County Court dismissed Mr AL’s defence and granted an immediate possession order. Mr AL appealed, but the Court of Appeal found that the tenant’s circumstances were not sufficient to outweigh the interest of the landlord.
What does this mean for me?
It is important for housing officers to ensure that the decision to commence possession proceedings will withstand the Court’s scrutiny; particularly where the occupant is likely to raise an Article 8 or Equality Act defence.
You should carefully document the facts leading up to the decision to seek possession; and be able to demonstrate to the Court that there is good cause to make the order.
How can Ward Hadaway help?
We currently work with a number of housing officers to complete Equality Act questionnaires prior to issuing proceedings, and will be looking to create a similar Article 8 questionnaire for use going forwards.
If you would like to discuss this further with a member of our Social Housing team, please get in touch.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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