COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRIGHTON COUNTY COURT
His Honour Judge Simpkiss
Case No: 4BR.25929
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWRENCE COLLINS
MR JUSTICE MUNBY
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Mr David Giles (instructed by Sherringtons) for the Respondent
Mr Robert Latham and Miss Catherine Casserley (instructed by the Solicitor for the Equality and Human Rights Commission) for the Intervener
Hearing date : 26th February 2008
Crown Copyright ©
Lord Justice Mummery :
"Defendant contends that due to issues of ill-health, disability and old age he would suffer exceptional hardship if any effective possession order were to be granted (and not also suspended). Please see attached supplementary page for further details".
i) In paragraph 1 S said that in 1996 he became unwell and in 1997 was awarded incapacity benefit, the prognosis being that he was unlikely ever again to be able to obtain and sustain paid employment.
ii) In paragraph 3 he explained that what he refers to as the landlord's "illegitimate and excessive demand" for increased rent in 2003 caused him "great distress" and "caused [him] to suspend payments of rent."
iii) In paragraph 4, referring to the housing benefit being held by the local authority, he said that he had "access to funds to fully settle all legitimate expectations" of the landlady "particularly when offset against a settlement in [his] favour as compensation for the distress and detriment caused to him by [her] unreasonable and illegitimate demands and actions and inactions".
iv) He concluded in paragraph 5:
"Thus, it is submitted that Defendant's disability and health issues, coupled with his advanced age" we were told that he is in fact 62 "and the importance to his emotional well-being of continuing to have the security of a full assured tenancy would overwhelmingly support dismissal of the present claim for possession or, if not dismissed, then suspension of any possession order to be made".
The hearing before the District Judge
"THE DISTRICT JUDGE: They appear to be admitted arrears, do they not?
MR JONES: Yes."
We can pick it up a little later:
"MR LEAVER: Madam, there are admitted arrears, I think
THE DISTRICT JUDGE: Are they not in excess of £7,000?
MR LEAVER: what we had asked for in this matter is for the proceedings to be halted because I have got concerns about Mr S's mental capacity and we would like to request that the proceedings be halted while we look into this matter under CPR Order 21.
THE DISTRICT JUDGE: Yes but the difficulty is, of course, he has admitted arrears, has he not, in his defence which are more than eight weeks. I mean, what has his mental capacity got to do with that? After all, Mrs Floyd, she is not a social landlord.
MR LEAVER: She is not, no.
THE DISTRICT JUDGE: She has no social responsibilities to your client, she is entitled to her rent and he has admitted he has got arrears in excess of £7,000; that is the problem, is it not?
MR LEAVER: We admit the arrears, our concerns are making a possession order with someone that may be lacking capacity and is extremely vulnerable.
THE DISTRICT JUDGE: Well perhaps he is but it is not Mrs Floyd's responsibility, that is the Local Authority's, is it not?
MR LEAVER: Eventually it would be, yes.
THE DISTRICT JUDGE: Yes, well why is it that Mrs Floyd has to bear the brunt of social problems? She has not had her rent. Your client admits that he is £7,000 in arrears. Whether he has mental problems or not that does not give him a defence, does it, under ground 8?
MR LEAVER: It does not give him a defence of I took some advice earlier and was advised to ask for a halt in the proceedings under CPR Order 21.
THE DISTRICT JUDGE: Well I do not think it is appropriate, I mean, this has been going on for so long
MR LEAVER: No, I do not. The proceedings under section 8, there is no defence under section 8
THE DISTRICT JUDGE: Right.
MR LEAVER: and we are not disputing that
THE DISTRICT JUDGE: So she is entitled to possession.
MR LEAVER: what I was asking for was that the proceedings could be stayed under CPR 21.
THE DISTRICT JUDGE: I do not think that is appropriate "
And a little later:
"THE DISTRICT JUDGE: Well I cannot see that there is any defence whether or not your client is mentally ill or not."
The hearing before His Honour Judge Simpkiss
The grounds of appeal
i) First, they submit that the District Judge was unreasonable in concluding that an adjournment to investigate S's mental capacity was not warranted.
ii) Next, they submit that the District Judge erred in law in concluding that there were not exceptional circumstances to adjourn the possession claim following North British Housing Association v Matthews  EWCA Civ 1736,  1 WLR 3133.
iii) Finally, they submit that the District Judge erred in law in concluding that there was not an ability to resist the possession proceedings on the basis of disability discrimination that warranted an adjournment.
We shall deal with these in turn.
Ground (i) the capacity issue
"there was insufficient material before the District Judge to enable it to be submitted seriously that she was wrong in exercising her discretion not to grant an adjournment on that ground. All that she had was a concern raised by Mr Leaver, but not any evidence or even circumstantial evidence that he lacked capacity such as would require him to be made a patient."
"For the purposes of CPR Pt 21 the test to be applied is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law whether substantive or procedural should require the interposition of a litigation friend".
"He presents with perfectionism and inflexibility that can interfere with task completion, due to overly strict standards. He is preoccupied with details to the extent that the major point of the activity is lost".
"Many more hours are spent thinking or constructing written replies / correspondence that he has to deal with. Priorities are constantly juggled and his priorities may not be what others would consider appropriate. Our last few sessions have been taken up with attempting to prioritise completion and return of a form which would enable him to claim extra monies. He has returned to our sessions with many reasons why this has not been completed and it remains a task undone. He rarely 'allows' himself time off to relax".
"[S]'s current plight ie eviction proceedings, I consider to be part and parcel of his aforementioned presentation and personality and should be taken into account when dealing with his appeal".
That report, it will be noted, does not assert that S lacks capacity or that he lacked capacity at the time of the hearing before the District Judge.
"[S] has patently been unable to properly manage his financial affairs on account of his mental impairment. I have had several conversations with [S] and I have looked in detail at his Housing Benefit claim. [S] has a genuine inability to complete even simple and straight forward tasks."
Ground (ii) the adjournment issue
"If the door were opened to applications for adjournments founded on housing benefit problems, there would be a real danger that the housing lists would become congested with contested applications for adjournments."
Ground (iii) the Disability Discrimination Act v Housing Act issue
"It is unlawful for a person managing any premises to discriminate against a disabled person occupying those premises
(c) by evicting the disabled person, or subjecting him to any other detriment."
"(1) For the purposes of section 22, a person ("A") discriminates against a disabled person if
(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment is justified.
(2) For the purposes of this section, treatment is justified only if
(a) in A's opinion, one or more of the conditions mentioned in subsection (3) are satisfied; and
(b) it is reasonable, in all the circumstances of the case, for him to hold that opinion.
(3) The conditions are that
(a) in any case, the treatment is necessary in order not to endanger the health or safety of any person (which may include that of the disabled person) "
" where a landlord decided to serve a notice seeking possession or to cause a claim for possession to be issued it was either evicting the tenant or subjecting her to "any other detriment" within the meaning of section 22(3)(c) of the 1995 Act, and if the reason for such action related to the disability of the tenant it would be unlawful unless it could be justified pursuant to section 24(2) of the 1995 Act " [reference was made to paragraphs 50, 51, 60, 63, 75, 93, 104, 112 and 114 of the judgment of the court given by Brooke LJ]
"This prohibition does not prevent the eviction of a disabled tenant where the law allows it, for example, where they are in arrears of rent or have breached other terms of the tenancy, and where the reason for this is not related to their disability (or, if it is, it can be justified under the Act)."