ON APPEAL FROM HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
The Hon. Justice Cranston
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
LORD JUSTICE BRIGGS
| Aster Communities Ltd (formerly Flourish Homes Limited)
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Mr Nicholas Grundy and Miss Sara Beecham (instructed by Clarke Willmott LLP) for the Respondent
Hearing date: Thursday 12th June 2014
Crown Copyright ©
Lady Justice Arden :
APPELLANT SEEKS TO RESIST POSSESSION PROCEEDINGS BY HIS SOCIAL LANDLORD ON GROUNDS OF HIS DISABILITY
"15 Discrimination arising from disability
(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability."
WHAT MR AKERMAN-LIVINGSTONE HAS TO SHOW TO SUCCEED ON HIS DEFENCE OF DISABILITY DISCRIMINATION
"136 Burden of proof
(1) This section applies to any proceedings relating to a contravention of this Act.
(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
(3) But subsection (2) does not apply if A shows that A did not contravene the provision…"
COURTS BELOW RELY ON ANALOGY WITH ARTICLE 8 CASES
QUESTION TO BE DECIDED AND MY CONCLUSION ON IT
i) There are differences between the two defences but in each of them the court is concerned with the proportionality exercise.
ii) The countervailing interest of the social landlord in obtaining possession will outweigh that of the defendant who relies on disability discrimination in most, but not all, cases.
iii) Contrary to the submissions of Mr Akerman-Livingstone, Civil Procedure Rule ("CPR") 55.8 enables the court to dispose of the matter without a full trial.
iv) No distinction can be drawn between a possession claim brought by a LHA and one brought by a housing association which is a social landlord.
v) On the facts of this case, the circumstances of Mr Akerman-Livingstone's case, if proved in all respects, would not outweigh the strength of the countervailing interest of Aster, and so the trial judge was right to dismiss it summarily.
i) Same proportionality exercise
"Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest."
"First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?"
ii) Social landlord's countervailing interest generally outweighs that of the tenant
"64 Sixthly, the suggestions put forward on behalf of the Equality and Human Rights Commission, that proportionality is more likely to be a relevant issue "in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty", and that "the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases" seem to us well made."
iii) CPR 55.8 permits summary disposal of possession proceedings
iv) No distinction between LHA and social landlord which is a housing association
v) Circumstances of Mr Akerman-Livingstone's case do not outweigh Aster's countervailing interest
Ancillary application by Mr Akerman-Livingstone for permission to amend his defence to plead that he is, after all, an assured shorthold tenant
Lady Justice Black
Lord Justice Briggs