UKSC 15
On appeal from:  EWCA Civ 1081
Akerman-Livingstone (Appellant) v Aster Communities Limited (formerly Flourish Homes Limited) (Respondent)
Lord Neuberger, President
Lady Hale, Deputy President
JUDGMENT GIVEN ON
Heard on 10 December 2014
Jan Luba QC
(Instructed by Shelter Legal Services)
Daniel Stilitz QC
(Instructed by Clarke Willmott LLP)
Monica Carss-Frisk QC
(Instructed by Equality and Human Rights Commission)
The Equality Act 2010
"(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."
(a) whether the eviction is "because of something arising in consequence of B's disability"; this was a reformulation from that in the Disability Discrimination Act 1995, intended to make it clear that where something arising in consequence of the disability was the reason for the unfavourable treatment, the landlord (or other provider) would have to justify that treatment; there was no need for a comparison with how it would treat any other person; it might have to behave differently towards a disabled tenant from the way in which it would behave towards a non-disabled tenant; and if so
(b) whether the landlord can show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.
"(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."
Thus, for example, if there are facts from which the court could conclude that an eviction was "because of something arising in consequence of a person's disability" then it would be for the alleged discriminator to prove that it was not. If he could not do so, the burden would then be upon him to show that it was nevertheless a proportionate means of achieving a legitimate aim.
"including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing."
In many cases there might also be "other cogent reasons", such as the need to remove a source of nuisance to neighbours, to support the proportionality of dispossessing the occupiers.
Are there any differences between article 8 and section 15?
"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?"
This three-fold formulation was drawn from the Privy Council case of de Freitas v Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69, 80, which was itself derived from the Canadian case of R v Oakes  1 SCR 103. However, as Lord Reed explained in Bank Mellat v Her Majesty's Treasury (No 2)  UKSC 39,  AC 700, para 68 et seq, this concept of proportionality, which has found its way into both the law of the European Union and the European Convention on Human Rights, has always contained a fourth element. This is the importance, at the end of the exercise, of the overall balance between the ends and the means: there are some situations in which the ends, however meritorious, cannot justify the only means which is capable of achieving them. As the European Court of Justice put it in R v Minister for Agriculture, Fisheries and Food, Ex p Fedesa (Case C-331/88)  ECR I 4023, "the disadvantages caused must not be disproportionate to the aims pursued"; or as Lord Reed himself put it in Bank Mellat, para 74, "In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure".
"... in the context of a statutory regime which has been deliberately designed by Parliament, for sound reasons of social policy, so as not to provide the occupier with a secure tenancy [the structured approach] would be wholly inappropriate ... It would give rise to the risk of prolonged and expensive litigation, which would divert funds from the uses to which they should be put to promote social housing in the area. In the ordinary case the relevant facts will be encapsulated entirely in the two legitimate aims that were identified in Pinnock …, para 52. It is against those aims, which should always be taken for granted, that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances."
In the great majority of cases, the court is simply not equipped to judge the weight of an individual's right to respect for her home against the weight of the interests of the whole community for whom the authority has to manage its limited housing resources (para 35).
Summary disposal in this case?
(a) The normal procedure of the court in addressing a defence under section 35(1)(b) of the 2010 Act to an action for possession should not be equated with its normal procedure in addressing a defence to such an action under Article 8 of the Convention.
(b) Where a defence is raised under section 35(1)(b) to an action for possession, there should be no presumption that the action is fit for summary disposal. On the contrary rule 55.8(2) of the CPR calls for a careful evaluation at that initial stage whether the claim is genuinely disputed on grounds which appear to be substantial.
(c) Where such a defence is raised, the court should adopt a four-stage structured approach to the claimant's attempt to show, pursuant to section 15(1)(b) of the 2010 Act, that the steps which it is taking for the purpose of securing the defendant's eviction are a proportionate means of achieving a legitimate aim.
"In remaining in occupation, the Defendant is preventing other applicants for housing assistance whom the Council has determined it does owe a duty to … from enjoying the better standard of accommodation which the Council could secure for them by requesting the Claimant to accommodate them temporarily in the Property."
But the Reply was filed more than two years ago. Events have supervened. The usual second aim no longer exists in the present case and, were there to be a full trial, should therefore on no account be accepted as a "given". It has been replaced by an aim which is even more compelling: for the claimant now urgently needs vacant possession of the flat occupied by the defendant ("Flat One") in order to comply with its own legal obligations.
(a) Flat One is one of eight flats in a building in Glastonbury.
(b) At all material times the freehold of the building has been held by a small property company, subject to a mortgage.
(c) The claimant's interest in the flats has been as a leaseholder, namely under eight separate fixed-term leases. The claimant entered into the leases in order to perform its agreement with Mendip to provide temporary accommodation to those whom Mendip was required (or elected) to accommodate under Part VII.
(d) In August 2010, at Mendip's request, the claimant let Flat One to the defendant under a weekly tenancy. On 18 July 2011, following Mendip's conclusion, upon review, that it had ceased to be subject to a duty to secure accommodation for him, the claimant served him with notice to quit effective from 21 August 2011. The appeal proceeds on the basis that the notice to quit validly terminated his tenancy.
(e) The fixed terms of the claimant's leases of the eight flats expired on dates no later than February 2014 and thereafter it held them on monthly tenancies.
(f) Early in 2014 Mendip informed the claimant that, for reasons of policy, it had decided no longer to request it to provide accommodation in the building for those whom it was required (or elected) to accommodate under Part VII.
(g) Coincidentally and at about the same time, the freeholder, under pressure from its mortgagee, determined to sell the building with vacant possession.
(h) In April 2014 the claimant served on the freeholder notice to quit seven of the eight flats but, because of the pending appeal, not Flat One.
(i) On 1 May 2014, however, the freeholder served on the claimant notice to quit Flat One, effective from 30 June 2014. Since then the claimant has had no interest in Flat One, save that the freeholder has granted to it a licence to enforce the possession order made by Judge Denyer QC if and when it can.
(j) The claimant's breach, to date, of its obligation to give vacant possession to the freeholder of Flat One appears to have disabled the latter from selling the building to a buyer who has been ready to purchase it with vacant possession. In this regard the claimant is at risk of a claim by the freeholder for damages.
(a) The defendant began to occupy Flat One in August 2010. It was intended to be temporary accommodation because it was provided pursuant to Mendip's duty to him under section 193 of the 1996 Act.
(b) By the date of any full trial he will have remained in occupation of Flat One for almost five years.
(c) Efforts to place the defendant in permanent accommodation owned or procured by Mendip began as soon as he began to occupy Flat One. Mendip operates a system whereby those eligible for social housing can bid for available properties, as can Mendip on their behalf.
(d) Between the summer 2010 and March 2011 eleven properties in Mendip's area were canvassed for possible occupation by the defendant. In relation to ten of them, either he declined to bid; or he told Mendip not to bid on his behalf; or he withdrew his bid; or, after his bid had been accepted, he rejected the property. But it seems that, in the light of his disability, all 11 of them were unsuitable for him for one reason or another.
(e) In his Defence dated 22 December 2011 to the claim for possession the defendant asserted that he required to continue to occupy Flat One only for so long as it would take to find more permanent suitable accommodation in a suitable area having regard to his disability.
(f) In September 2012 the claimant offered to the defendant a starter tenancy of the flat situated along the same street as the building. The fact is that this flat was suitable for him. According to Mr Callow, it was the defendant's state of mind which prevented him from accepting it. Having previously reversed its original decision to this effect, Mendip thereupon again decided that its duty to the defendant under section 193 of the 1996 Act was discharged. Represented at this stage by Shelter, the defendant did not request a review of the decision pursuant to section 202 because he could not dispute that the flat situated along the same street had been suitable for him.
(g) As recently as 11 June 2014, Shelter, by letter, reiterated to the claimant that the surest way in which it would secure vacant possession of Flat One prior to the expiry, which was then imminent, of the freeholder's notice to quit would be for it immediately to make or procure an offer of suitable alternative accommodation to him.
(h) But, at the hearing before this court, the stance taken on behalf of the defendant inevitably changed. Change was inevitable because, in that the defendant had been unable to accept the suitable accommodation along the street, there were no grounds for considering that there was any change in his condition which might enable him at this stage to accept other suitable accommodation. The stance became as follows:
"This is a case where therapy was and is required. Pending receipt of this, moves to evict [the defendant] ought not to be made."
(i) It is unclear whether, and if so when and for how long, the defendant has undergone therapy. In December 2011 Mr Callow commented that he had seldom seen someone more in need of therapy than the defendant and in July 2012 he added that the defendant had needed therapy for many years. There is no evidence that the defendant has embarked – or, as would be a fairer description, has been able to embark – on therapy since Mr Callow made his comments. So the question arises: no eviction prior to receipt of therapy means eviction … when?
LORD CLARKE AND LORD HUGHES: