England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CROYDON COUNTY COURT
HHJ Ellis
7 PB 38960

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th February 2010

Lord Justice Patten :

Introduction

1. This is an appeal against an immediate order for possession of a flat at 100 Beckford Road, Croydon ("the flat") which was made by HHJ Ellis on 18^th December 2008. The appellant, Mr Shane Barber, is the tenant of the flat. His landlord is the London Borough of Croydon ("the Council") which is the respondent to this appeal.
2. It is common ground that Mr Barber suffers from learning difficulties and a personality disorder of a permanent nature. In 1999 he was found wandering the streets of Croydon in a confused and vacant state and exhibited psychotic symptoms. He underwent an examination at the Royal Bethlem Hospital but was not sectioned. He has an earlier history of physical abuse as a child and of drug and alcohol dependence as a teenager. He suffers from acute depression and on one occasion prior to mid-1999 he attempted suicide. His behavioural problems resulted in the breakdown of his relationship with his mother which, until 1999, contributed to a lack of security and any form of settled life. Both sides accept that he suffers from a mental impairment which qualifies him as a disabled person within the meaning of the Disability Discrimination Act 1995 ("DDA 1995").
3. The Council assessed Mr Barber as having a priority need for housing to assist him in becoming more settled with support from the Council's social services department. He was granted a tenancy of the flat in about September 1999 as temporary accommodation under s.188 of the Housing Act 1996 ("HA 1996") but this was then continued as a non-secure tenancy. The duty on the Council prescribed by s.193 HA 1996 was to provide the appellant with suitable accommodation for a minimum period of two years subject to review. After 31^st July 2002 (when the amendments introduced by the Homelessness Act 2002 came into effect) the duty under s.193 continued subject to termination in the events prescribed by s.193(5)-(7).
4. On 22^nd May 2007 an incident occurred between Mr Barber and the caretaker of the flats at Beckford Road employed by the Council (a Mr Baah). The evidence of the caretaker (which the judge accepted) was that Mr Barber came up to him and, without warning, began to swear at him. The gist of what Mr Barber said appears to have been some kind of complaint about the presence of broken glass at the rear of the building but his language was laced with expletives and appears to have been threatening. Mr Baah said that he would make sure that the glass was cleared up. Mr Barber then returned to his flat.
5. However, a few minutes later, he came back and threatened to do something to Mr Baah if the mess had not been cleared up by the time he (Mr Barber) returned from Croydon. He then approached Mr Baah and spat in his face. Mr Baah's evidence was that Mr Barber smelt of alcohol. Mr Baah began to walk away but the appellant then came up to him and kicked him in the knee causing a soft tissue injury which required hospital treatment. Mr Barber then repeated his threat to Mr Baah if the rubbish was not cleared up.
6. This incident was reported immediately to the Council's anti-social behaviour officer (Mr Williams) who has delegated authority to deal with complaints of this kind. He consulted his manager and a decision was made to serve a notice to quit on Mr Barber. The notice was served on 22^nd June 2007 terminating the tenancy on 23^rd July 2007 in accordance with condition 4 of the general conditions of Mr Barber's tenancy. Prior to the service of the notice neither Mr Williams nor any of the other officers of the Council had interviewed Mr Barber about the incident which took place on 22^nd May. But on 25^th June Mr Barber came to see Mr Williams following the receipt of the notice to quit.
7. Mr Williams asked Mr Barber for his explanation of what had occurred between him and Mr Baah. Mr Barber said that Mr Baah had questioned whether there was any broken glass behind the flats when in fact it had been there for some six weeks. He said that the caretaker was trying to make him look stupid. Mr Barber rejected making some of the statements alleged by Mr Baah but accepted that he did have an argument with him. He also denied either spitting at or kicking him. However, on 28^th July 2007 he accepted a police caution for an offence under s.4A of the Public Order Act 1986 of causing another person harassment, alarm or distress by the use of threatening and abusive language.
8. On 24^th July 2007 the Council issued proceedings against Mr Barber in the Croydon County Court seeking an order for possession. A defence was served which, as subsequently amended on 17^th January 2008, raised a variety of issues in response to the claim. The pleading asserted that Mr Barber had become a secure tenant by the time of the notice to quit; that the Council had acted unlawfully in determining to bring and in pursuing the possession proceedings having regard to their failure properly to consider and take into account Mr Barber's disabilities; and that the making of an order for possession would be unlawful as discrimination contrary to ss. 22 and 24 DDA 1995. The judge held that the tenancy had never been more than a non-secure tenancy of the flat and there has been no appeal against his decision on that point. We are therefore concerned on this appeal only with the legality of the Council's decision to seek and to obtain the order for possession.
9. The appellant's reliance in his defence on the DDA 1995 led to an order being made by the District Judge on 23^rd November 2007 that the parties should jointly instruct a psychiatric expert to report on whether Mr Barber had a disability for the purpose of the Act between May 2007 and the date of the report and, if so, whether his conduct in May 2007 was related to any such disability. Accordingly instructions to that effect were given to Dr Amanda Owen, a consultant psychiatrist at the Mayday University Hospital in Croydon. She was supplied with Mr Barber's medical records (including those from the Bethlem Royal Hospital) and asked to report on the possible relationship between his conduct and any disability. She was also asked to say whether Mr Barber would be able to cope with street homelessness as well as an ordinary average person. This is, of course, relevant for determining whether Mr Barber would have a priority need for housing under Part 7 HA 1996 were he to become homeless.
10. Dr Owen produced her report on 8^th December 2008. Much of her report contains a detailed description of Mr Barber's medical and personal history which I have referred to earlier in this judgment. It is unnecessary to set it out in extenso but a number of the points which she makes about his condition at the time of her report are highly relevant to the Council's decision to continue with the possession proceedings and to the issues which arise on this appeal.
11. Dr Owen reported that Mr Barber describes himself as always feeling chronically depressed and acknowledges that he finds people difficult to cope with. Any social interactions are therefore stressful for him and often result in panic and even incontinence. He has now ceased to take drugs or to abuse alcohol and has contact with his family at least once every two weeks.
12. He has only two acquaintances living in the same block of flats and spends most of his time at home watching television and looking after his fish. Dr Owen described Mr Barber as looking anxious with little spontaneity. But he was amiable and pleased with his ability to manage independently at home in the flat. He described his main concern as his constant depression and the possible loss of his home. He acknowledged that he has low self-esteem and has difficulty with impulse control. But he feels safe living in the flat and is anxious to continue to do so.
13. Dr Owen's assessment of Mr Barber was that he suffers from permanent and persistent personality and mood disorders and remains exceedingly vulnerable to the recurrence of the psychotic episode which took place when he was homeless in 1999 and led to his suicide attempt. Her report concludes with the following paragraphs:

"He feels safe in his current routine at his home and any trips to Croydon precipitate panic and a resurgence of his urinary incontinence. His personal and social isolation, do mean that he tends to live in a limited environment. However, he feels safe and in control within this space. When this control is threatened, he feels insecure and is unable to cope, and does not have the psychological resources to consistently respond appropriately. He would be liable to decompensate if his equilibrium is threatened by eviction, resulting in serious deterioration of his Physical and Mental Heath. He has a short attention span, is highly conscious of his intellectual and emotional shortcomings, and fails to assimilate and fully comprehend matters. He is not articulate.

It is certain that Mr Barber's behaviour is related to his Disability. On the whole he is managing as best he can, and his frustration, at its peak is usually inwardly directed, resulting in self-harm. He has been able to function independently throughout the last seven years, predominantly due to the stability and safety of having a permanent residence close to his family home. Mr Barber's Disability would have contributed to his behaviour, if the court is persuaded by the care taker's version of events.

Mr Barber would definitely not be able to cope with homelessness like an ordinary, average person. He was sectioned under the Mental Health Act 1983, after his previous episode of homelessness, having been asked to leave the family home ten years ago. At that time, housing him was a priority, and he has remained stable from a mental health perspective whilst he has been in this accommodation. He has remained physically healthy and struggles to cope with his social isolation. His coping methods under pressure are not circumspect, nor well executed. He suffers from Substantial Impairment due to his Disability. His life would descend into chaos if evicted, and as he is not able to engage normally within society, his life would be placed at considerable risk."

14. Faced with this report, the Council took further legal advice as to whether to continue with the action. Mr Hunt, the Council's Anti-Social Behaviour Team Manager, said in his witness statement that, after considering the tenancy file, he concluded that it remained proportionate for the Council to seek a possession order. His principal reasons can be summarised as follows:-

(i) It is very important for the day-to-day functioning of the Council's housing activities that caretakers and others employed on the Council's estates where there is a risk of abuse and violent conduct should have the Council's full support where such incidents occur;

(ii) It is also important that the correct message should be sent to tenants that behaviour of this kind will not ordinarily be tolerated;

(iii) The incident in question was a very serious breach of Mr Barber's tenancy agreement. It involved the criminal use of threatening and abusive language to harass Mr Baah and was exacerbated by Mr Barber spitting at him and kicking him;

(iv) Although there were no complaints against Mr Barber of anti-social behaviour before the incident on 22^nd May and there have been none since then, Mr Hunt attached no significant weight to the absence of repetition because Mr Barber was under the threat of court proceedings. In any event, the isolated nature of the incident was outweighed by its seriousness;

(v) Mr Hunt was not convinced that Mr Barber's conduct on 22^nd May was caused by his mental disabilities. But even were that so, the seriousness of his conduct makes it proportionate to seek a possession order. Dr Owen's report does not suggest that Mr Barber is incapable of controlling his behaviour or of distinguishing between right and wrong;

(vi) Given that Mr Barber's behavioural problems are of a persistent nature, it is not possible to be confident that a similar situation will not occur in the future; and

(vii) There are no exceptional factors which arise in this case for the purposes of Parts 6 and 7 HA 1996.

The legal framework

15. The legality of this decision falls to be considered in private law proceedings by the Council for possession of its property. The ability of a defendant in such proceedings to raise by way of defence in the action a public law challenge to the decision to bring the claim rather than proceeding separately by way of judicial review was recognised in Wandsworth LBC v Winder [1985] AC 461. More recently, the House of Lords has given extensive consideration to the grounds of any such challenge in possession proceedings particularly in relation to an Article 8 defence.
16. In Kay v Lambeth LBC [2006] 2 AC 465 the majority view was that judges in the County Court trying such cases should proceed on the assumption that domestic law strikes a fair balance and is compatible with the occupier's convention rights. This led Lord Hope to limit possible challenges to a local authority's otherwise established right to possession to two types of case: (a) those in which exceptionally it was arguable that the law giving the right to possession was incompatible with Article 8; and (b) cases where the decision to exercise the legal right to obtain possession was one which no reasonable person would consider justifiable: see paragraph 110 at page 517D.
17. These gateways were considered further by Lord Hope in the subsequent decision in Doherty v Birmingham CC [2008] UKHL 57 but the guidance set out in Kay remained intact and any further analysis is unnecessary for the purposes of this appeal. Gateway (b) is essentially a conventional public law test, although one which is broader than a strict formulation of the Wednesbury principle: see Doherty at paragraph 55.
18. There is, however, a question of timing. The decision to serve the notice to quit was taken immediately after the incident on 22^nd May was reported and before Mr Barber was interviewed. It therefore preceded any consideration of that explanation and was made without the benefit of the subsequent assessment by Dr Owen of Mr Barber's conduct and his responsibility for what occurred. In Doran v Liverpool CC [2009] EWCA Civ 146 Toulson LJ expressed the view that a decision to serve a notice to quit which was reasonable on the facts known to the local authority at the time could not be invalidated retrospectively by reference to facts subsequently established or discovered. This makes it important to identify the decision which is subject to challenge in possession proceedings by a local authority. In Doran the focus seems to have been on the decision to serve the notice to quit. But, in principle, there is no reason to stop at that point. In Kay Lord Hope spoke of the challenge under gateway (b) being to the decision of the local authority to recover possession. That process involves not only the service of a notice to quit as a necessary first step but also the commencement and conduct of the possession action thereafter. It seems to me that a local authority is bound to keep the position under review and to take into account any relevant facts which come to its notice at any stage in the proceedings. This process of review has two obvious consequences. The first is that it avoids any questions of retrospectivity by requiring the local authority to make a series of decisions which accommodate any new facts or other material relevant to its decision to seek possession. The second is that it allows the local authority to re-consider new material subsequent to its initial decision to terminate the tenancy and so avoid the charge that it has failed to take all relevant matters into account. By the same token, a decision to press ahead with possession proceedings taken following a re-consideration of the case subsequent to the notice to quit will be reviewable regardless of the legality of the earlier decision to commence the proceedings.
19. This was the approach of the Court of Appeal in Taylor v Central Bedfordshire Council [2009] EWCA Civ 613. At paragraphs 39 - 40 Waller LJ said this:-

"39. I would accept that the likely assumption of the majority in Kay was that the relevant decision that could be the subject of judicial review was the original decision to seek possession. Furthermore, Toulson LJ was of the opinion in Doran that the court should not engage in a retrospective exercise by examining the facts as they are now found to be and asking whether the decision on those facts would have been lawful. [See paragraph 57 to 60]. He was also of the view that the remission in Doherty was for the purpose of examining the facts known to the public authority when it made its original decision. I respectfully suggest that there is a difficulty with this approach having regard to the fact that in these cases the burden is on the occupier to raise the circumstances on which he relies and because the approach perhaps does not recognise the possibility that a public authority may make a series of decisions in the light of the facts as they appear. If one looks at it on the basis that, once the public authority knows facts that it has not known up until they are revealed, the public authority is bound to take a further decision that avoids the concept of an exercise in retrospectivity.

40. An authority such as the council in the instant appeals may make a decision on the facts as known to it to send a letter seeking possession. Prima facie it has no obligation to find out what the true facts are and the burden is going to be on the occupier to demonstrate any grounds relied on as providing an Article 8 defence. If the occupier informs the public authority of relevant circumstances, the public authority will have to take a further decision as to whether to commence proceedings. If no letter is received and the facts are only divulged just prior to the hearing, the public authority in reality has to take a further decision as to whether to proceed. Indeed if the revelation is only during the hearing, the council in deciding to continue to press for an order takes yet a further decision. I do not see why if any one of these decisions could be shown to be "unreasonable" whatever that means (and I will come back to that), it could not be attacked."

20. The Council's failure to interview Mr Barber before serving the notice to quit and the receipt of Dr Owen's report after the commencement of the proceedings means that the consideration of this evidence by Mr Hunt represented the first proper opportunity which the Council had of considering Mr Barber's explanation for the incident on 22^nd May coupled with a professional assessment of his responsibility for what occurred. Dr Owen's report is also important for its assessment of the likely consequences for Mr Barber of possession being ordered. For this reason, Mr Beglan for the Council accepts that the notice to quit was served before all the issues raised in Dr Owen's report were considered but relies on Mr Hunt's assessment as a full and legitimate consideration of all the relevant material.
21. This is disputed by Mr Balogh in a number of respects which I will come to later in this judgment. But, in the light of the decision in Taylor, he accepts that it is in principle open to a housing authority in the position of the Council to re-consider the need to seek possession at any time up to the making of the possession order or even its enforcement and to rely on such a re-consideration as curing any defects in the original decision to commence the proceedings. For this reason, the focus of this appeal has been on Mr Hunt's decision to press ahead with the possession action and his reasons for reaching that conclusion.

Policy

22. Section 218A HA 1996 (which was inserted into the statute by s.12 of the Anti-Social Behaviour Act 2003) requires landlords like the Council who are local housing authorities to prepare a policy in relation to anti-social behaviour (ASB) and procedures for dealing with the occurrence of such behaviour. A statement of the policy must be published and made available for inspection (s.218A(3) and (5)). Section 218A(7) provides that, in preparing and reviewing the policy and procedures, the landlord must have regard to guidance issued by the Secretary of State.
23. A code of guidance ("the Code") was issued by the Secretary of State in December 2004. Much of it is directed to identifying the issues which should be addressed in the housing authority's statement of policy on ASB both in relation to the perpetrators of ASB and also in relation to its victims. Paragraph 3.42 of the Code deals with the protection of staff:-

"3.42 Unfortunately employees of the landlord or others not directly employed but who may be employed in connection with the exercise of the relevant landlord's housing management functions, may from time to time be threatened, abused or harmed in the course of their normal duties or when specifically tackling ASB. The Statement of Policy should provide details of the landlord's policy on the protection of staff and the legal remedies which the landlord may use to protect them."

24. Similarly paragraph 3.10 expresses the view that landlords should support complainants by dealing with their complaints promptly and by keeping them informed about any developments. Support for complainants may include providing out of hours contact; risk assessment of their homes; and support at court if they are required to give evidence in any subsequent proceedings.
25. But the Code also recognises that an important aspect of dealing with ASB is its prevention. This will extend to the rehabilitation of perpetrators and support for vulnerable groups. In paragraphs 3.22-5 the Code states:

"3.22 In considering the most effective options for the protection of tenants and the wider community from ASB landlords should consider the positive impact that support might have on perpetrators. The provision of support will be particularly relevant when considering issues of ASB that are a consequence directly or indirectly of one or more of the following factors:

• Drug use

• Alcohol use

• Mental health

• Disability.

3.23 It is important to note that the majority of people who fall within these vulnerable groups are not perpetrators of ASB and may also be victims of ASB.

3.24 Tenants whose anti-social conduct is a consequence of one or more of the issues listed above may sometimes require support in maintaining their tenancies. Adopting effective interventions by specialist agencies can help ensure that key professionals are involved at the earliest possible stage to prevent or manage issues as they arise. Specialist agencies may include, but are not limited to, the local community health team, drug action teams and community-based organisations such as drug and alcohol support and mental health services. The Statement of Policy should set out the landlord's policy on the provision of support to perpetrators. This might include:

• The role of multi-agency partnerships [See paragraphs 3.28 –3.32]

• Delineation of key roles and responsibilities

• Protocols and planning

3.25 Landlords should consider what actions they can take to achieve long-term changes in the behaviour of perpetrators, and to prevent displacement of anti-social behaviour."

26. This emphasis on the need to recognise cases where ASB is the product of mental health or other disabilities is obviously relevant in the present case. The recommendation that landlords faced with such cases should enlist the help of specialist agencies is discussed further in paragraph 3.28 of the Code:-

"3.28 Landlords do not operate in isolation. They are part of a wider community and will share the problems and challenges of that wider community. ASB is a complex phenomenon, and it is unlikely that the causes or solutions to it will lie solely within the remit of a single organisation.

3.29 Multi-agency partnerships involve landlords working with residents and local agencies such as the police, neighbourhood wardens, youth offending teams, schools, health services, drug action teams, social services and probation services. The development of multi-agency partnerships can be an effective way to prevent and combat ASB. Landlords may also wish to include coverage of any partnership arrangements with private landlords in order to tackle ASB across tenures.

3.30 A co-ordinated approach by specialist agencies to provide perpetrators of ASB with the support that they may need can assist in their rehabilitation. Effective interventions by specialist agencies can prevent landlords from having to take legal action in relation to ASB.

3.31 The First Secretary of State encourages the development of multi agency partnerships by landlords as they have proven to be an effective tool against ASB."

27. In the context of disability discrimination duties are also imposed on local authorities. Section 49A of the DDA Act 1995 provides that:-

"(1)     Every public authority shall in carrying out its functions have due regard to—

(a)     the need to eliminate discrimination that is unlawful under this Act;

…..

(d)     the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;

…..."

28. Mr Balogh relies on s.49A as an additional foundation for his central submission that the Council was obliged to have regard to Mr Barber's disabilities when formulating its policy on ASB and when deciding to take action in respect of the incident which occurred on 22^nd May. The Council's policy on ASB in the context of its functions as a housing authority is contained in a lengthy document published by its housing department. The general policy aim is stated to be to seek an end to ASB and to allow residents and community members quiet enjoyment of their homes. To this end, staff dealing with complaints of ASB will be concerned with "prevention, diversion, behaviour change, community inclusion and community sustainment". In the section of the policy statement headed "Vulnerability" it states:-

"Our staff are trained to work with other statutory and voluntary agencies in order to ensure the needs of our vulnerable complainants and perpetrators (alleged or proven) are considered.

However, vulnerability in itself will not prevent Officers from taking action to bring an end to complaints of anti-social behaviour".

"Vulnerability" is defined in the policy statement to include people with diagnosed mental illness and personality disorders.

29. Section 4 of the document sets out three categories of ASB together with an indication of the action usually (but not necessarily) taken to deal with it. The statement emphasises that the categories are given for guidance and complaints may be dealt with in a different way. Category 1 includes such conduct as noise, the dumping of rubbish and drunkenness, most of which will typically be dealt with by a warning. Category 2 is more serious behaviour including burglary, vandalism, threats or drug dealing. In these cases the service of a notice to quit or the requirement for the offender to sign an Acceptable Behaviour Contract (ABC) will be the usual response.
30. The most serious category is category 3. The stated policy is that complaints in this category will almost always result in legal action either in the form of an application for an ASB injunction (or ASBO) or for an outright possession order. The type of ASB in category 3 includes one-off serious incidents or crime, physical assault or threats of violence and gun and knife related crime.
31. Although there was some argument about this at the trial, the judge was, I think, entitled to find that the incident on 22^nd May (on the facts found by him) came within category 3. Although one-off, it was a serious incident involving violence to the caretaker and Mr Barber's conduct was (as his acceptance of a caution confirms) criminal in nature. But the categorisation of ASB in the policy statement is expressly conceded to be no more than a guide. Behaviour of the kind under consideration straddles both category 2 and category 3. Some aspects of Mr Barber's conduct consisted only of threats but, ultimately, it degenerated into a sudden act of violence.
32. Serious, however, as this was, there must inevitably be an analysis of the cause of the ASB before the correct response can be decided upon. As in a criminal trial, sentencing can encompass a broad range of options in which the prevention of similar conduct in the future will undoubtedly be a major consideration. But as the Code quoted earlier makes clear, that involves a consideration of what can be done to change the behaviour of the perpetrator. Simply to remove him to another location may not of itself solve the problem.
33. These issues are particularly important in relation to vulnerable people as defined in the Council's policy statement. This recognises the need for the housing department ASB team to work in partnership with other internal and external statutory and voluntary agencies including the social services department and the Integrated Mental Health Service (IMHS). The policy statement says in terms that:-

"The Tenancy Team will always refer ASB cases to the IMHS to ensure that vulnerability is considered when action is taken."

34. For the same reason, the Council has included in its ASB policy a wide range of informal as well as formal and legal remedies to deal with cases which occur. These range from warning letters to full-blown ASBO and ASB injunction proceedings. The service of a notice to quit to terminate a non-secure tenancy is a first step in any possession proceedings and such proceedings will be instituted if, as the policy states, the ASB is continuing. But short of this, the Council has the option of requiring the tenant to enter into an ABC. The perpetrator in such cases will, according to the policy statement, be supported by the Council and other agencies to help them keep to the agreement. It is noteworthy that ABCs are described in the statement as "an effective and valuable part of our prevention, diversion and behaviour change agenda for use with young people, as well as adults - including those with diagnosed mental illness."
35. Mr Balogh does not allege that the Council's adopted policy was not compliant with either the Code or with s.49A DDA 1995. His case on this appeal is that Mr Barber, as a disabled and vulnerable person within the meaning of that policy, had a legitimate expectation that the guidelines I have referred to would be applied to him and that it was unreasonable for the Council to have served a notice to quit and instituted possession proceedings against him without first having consulted the IMHS and social services in order to decide whether a recurrence of his 22^nd May behaviour could be avoided by a measure short of the recovery of possession. The categorisation of his conduct as a category 3 case cannot obviate the need to explore these possibilities nor, he submits, can it exclude the use of something short of immediate eviction where that would both avoid further ASB on Mr Barber's part and avoid the risk to his stability and wellbeing which a possession order might create.
36. A central criticism of the Council is that Mr Hunt pressed ahead in breach of the Council's own policy without consulting the IMHS or considering whether anything less than possession would solve the problem. Mr Balogh submits that the danger of a late re-consideration of the case once possession proceedings are ongoing is that the officer in question may come to it with a closed mind or at least a significant pre-disposition to confirm the strategy already adopted. In these circumstances, he contends that the Council's decision to seek possession of the flat based on a single act of ASB by a disabled person remained one (even after the re-consideration by Mr Hunt) which no reasonable person would consider justifiable. He also says (so far as necessary) that it amounted to an act of discrimination contrary to s.24(1) DDA 1995.

Discrimination

37. The judge dismissed the allegation of discrimination on the grounds that the decision to seek possession of the flat did not amount to less favourable treatment of Mr Barber for a reason which related to his disability. The statutory test of discrimination contained in s.24(1) was not therefore satisfied. Following the guidance contained in the decision of the House of Lords in Lewisham LBC v Malcolm [2008] UKHL 43, he held that the proper comparator for the purpose of deciding whether there had been discrimination was a tenant of the same flat without a disability who behaved as Mr Barber did on 22^nd May. The judge found that the Council would, in such a case, have acted in the same way and would have commenced proceedings to recover possession.
38. I think that the judge's findings on discrimination are not open to serious challenge on this appeal. Although the allegation of discrimination was central to Mr Balogh's case in the County Court and was a significant part of his argument on this appeal, it is, on analysis, misconceived. The judge had ample evidence to support his finding that in a category 3 case involving violence towards a council employee, recovery of possession would be the almost inevitable outcome for the reasons set out in Mr Hunt's witness statement which I summarised earlier. The protection and support of staff coupled with the need to send a clear message to tenants that such behaviour will not be tolerated provide an adequate justification for the policy, absent any particular mitigating circumstances. The issue, however, in this case is whether that general policy applied or should have been applied to Mr Barber in this case. The criticisms of the way in which the Council handled the incident are not based on any discrimination by them against him. The question is not whether he was treated less favourably than a person without his disabilities but whether he should have been treated differently precisely because he has such disabilities and because they were a significant contributory factor to his behaviour that day.

Reasonableness

39. Judge Ellis was told by Mr Hunt that the Council takes a very serious view when one of its employees is assaulted and that it was appropriate to serve the notice to quit. It was, however, the Council's policy to keep the matter under review. Mr Balogh submitted to the judge that the Council had disregarded its own policy and procedures by taking action before interviewing Mr Barber and that it had failed to take into account his previous good record as a tenant and the absence of any repetition of the ASB. The notice to quit was, he said, a disproportionate response to what was, in truth, a single and isolated incident.
40. The judge, I think, accepted that the correct procedures were not followed but he took the view that the housing department had acted reasonably in deciding to serve a notice to quit and subsequently in deciding to continue with the possession proceedings. His conclusions are set out in paragraphs 50, 51 and 58 to 60 as follows:-

"50. The Claimant does now know about the Defendant's mental health position from, apart from anything else, the report of Dr. Owen. It is important to emphasise what Mr. Hunt says; that the policy of the Claimant (and I have no basis for doubting this) is to keep cases such as the present one under constant review when it comes to the decision of whether any possession order should be enforced. He made it clear that, after the judgment that is given, even at this stage, what is called a "sensitive report" will be sent by him to the Director of Housing, attaching the Housing file. It will contain a short report alerting the Director to the key issues. It will contain a recommendation. The Director will then have to decide whether to follow that recommendation, or whether to review and reconsider the recommendation. He will also decide whether he wishes to refer the case to the Members for a decision. All those procedures are important safeguards in a case of this kind. As Mr. Beglan has said, those are decisions which would ultimately be liable to judicial review if they were made in a way that was Wednesbury unreasonable.

51. Whilst I find it would have been better had the Defendant been interviewed and given the opportunity to explain before the notice to quit was served, in the particular facts of them case, as I find them to be, I do not accept the contention that the Claimant's officers fell foul of their own policy and procedure, which is set out in Appendix 1, headed: "Croydon Council Housing Department dealing with antisocial behaviour". The particularly relevant page is at 9, under the heading: "Category 3 ASB".

…

58. In my judgment, on the findings of fact that I have made that are necessary for this part of the case, the Defendant cannot succeed under either Gateway A or Gateway B of paragraph 110 of Kay. It is emphasised by the House of Lords that consideration of a defendant's personal circumstances is irrelevant, subject of course to the Disability Discrimination Act, which I have dealt with. As argued by the Claimant, the Defendant cannot discharge the onus that is on him. He had the benefit, on my findings, of a non-secure tenancy. A notice to quit was served for a reason which cannot be taken to be irrational. The Claimant had good information, which demonstrated that the Defendant had committed a serious assault on a caretaker. Further, the Defendant had threatened that caretaker with more of the same.

59. Furthermore, before the possession proceedings were issued, the Defendant was given the opportunity of an interview and the chance to give his side of the story. He admitted that he had behaved badly in the way that I have already described. He showed no signs of remorse, regret or apology for anything that he had done.

60. In short, incorporating the factual matters that I referred to earlier in the judgment, I have come to the conclusion that there is nothing in this case that is rare or exceptional in the way envisaged by the House of Lords which brings it within Gateway A or Gateway B of Kay."

Discussion

41. Mr Beglan took the point that Mr Hunt was not cross-examined to the effect that he had either overlooked or chosen to disapply the Council's policy about vulnerable people. Although this is correct, it is not clear to me what the purpose of any such cross-examination would have been in circumstances in which Mr Hunt had been asked by the Council's legal advisers to re-consider the question of recovering possession in the light of Dr Owen's report and to set out his conclusions in a witness statement which one is entitled to assume represents a full and accurate account of his reasoning.
42. It seems to me that the real difficulty with that evidence and the judge's treatment of it is that it takes no real account of the fact that Mr Barber's behaviour on 22^nd May was clearly obsessive and irrational and, as Dr Owen explains, almost certainly linked to the personality disorder from which he suffers. In these circumstances, it was unreasonable for Mr Hunt to proceed without applying the Council's policy on vulnerable people set out earlier. This would have involved him or his department liaising with IMHS and social services to see whether or not an alternative strategy to seeking possession could be followed in order to prevent any repetition of the ASB by Mr Barber. A supervised ABC is one obvious alternative.
43. Mr Hunt's analysis that the lack of any repeated behaviour by Mr Barber was probably due to the service of the notice to quit would, if correct, support the view that the service of the notice has acted as a sufficient deterrent and that the actual recovery of possession might not in fact be necessary. But the principal criticism that can be made is that Mr Hunt carried out the analysis of whether some alternative course of action would prevent any further instances of ASB in the future without assistance from the specialised agencies and without, in my view, giving Dr Owen's report the weight which it clearly deserves; indeed any weight. Thus he appears to have rejected Dr Owen's view that the incident was linked to Mr Barber's disabilities, although no reasons are given as to the basis on which this was done. There was also no apparent consideration of the possible consequences for Mr Barber of losing his flat which Dr Owen considered would cause his life to descend into chaos.
44. Judged by any ordinary standards, the assault on Mr Baah was serious and obviously unacceptable. But the Council's policy on vulnerable people is to explore alternative solutions which may lead to the prevention of ASB in the future. Although there may be cases where the risk of future ASB by such a tenant is unlikely to be countered by anything less than their removal, the requirement to consult the specialist agencies is likely to ensure that the recovery of possession is confined as a remedy to cases where it is actually necessary in order to prevent a repetition of such behaviour. Given the absence of any misbehaviour by Mr Barber prior to 22^nd May or subsequently, and having regard to Dr Owen's assessment of him, it was, I think, incumbent upon Mr Hunt to consult the other agencies and to take advice as to whether some alternative remedy such as an ABC would solve the problem. As I read it, the Council's policy is not (and certainly ought not to be) that incidents of ASB involving persons with mental disabilities should be handled without regard to the existence of those disabilities and their responsibility for the conduct in question.
45. What Mr Hunt appears to have done is to treat this as an ordinary category 3 case to which the Council's policies on vulnerable people have no application. I think that approach was wrong in principle and led to a decision by him which no housing authority faced with the facts of this case could reasonably have taken.
46. The judge's endorsement of Mr Hunt's decision is objectionable in my view for the same reasons. He makes no mention of the relevance of an alternative remedy and considers the interaction between the Council and the health authorities only in relation to providing an explanation as to why Mr Barber's condition was not recognised earlier when the decision to serve the notice to quit was made. He seems to attach some weight to Mr Hunt's evidence that the case would be kept under review but that is something which should have been carried out before the making of an outright order for possession; not afterwards. Once that stage is reached the court ceases to have any control of the process. If, as I believe, steps should have been taken to explore other solutions, that should have occurred prior to the trial of the action. Absent such steps, the challenge to Mr Hunt's decision was, in my view, entitled to succeed.

Conclusions

47. For these reasons, I would allow the appeal and set aside the possession order. The consequence of Mr Barber having established a gateway (b) defence is that the action fails and should be dismissed. It was suggested by Mr Beglan that this might have the consequence that the Council would either be issue-estopped or prevented on Henderson v Henderson principles from seeking a possession order in a second action were it to carry out the consultation process I have identified but nevertheless ultimately conclude that the recovery of possession was, in all the circumstances, the appropriate remedy. I do not accept that. If Wednesbury-type public law defences are to be permitted to be run in private law proceedings for possession then an exception to the private law rules against re-litigating previously decided issues has to be recognised. In such cases, the court will not treat the second action as an abuse of process when it has been necessitated by the Council having to take further administrative steps (including re-consideration) in order to satisfy its public law obligations. In such cases, the second action will fall to be considered on its merits alone.

Lord Justice Richards :

48. I agree.

Lord Justice Rix :

49. I also agree.