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Susannah O'Connell v Viridian Housing [2012] EWHC 1389

Where a tenant seeks to rely on disability discrimination as a defence to possession, s/he will not necessarily be entitled to an adjournment where the disability is irrelevant to the arrears.

When Ms O′Connell, an assured housing association tenant, inherited a property following the death of her mother, she no longer qualified for housing benefit. Rent arrears accrued, and Viridian Housing ("V") sought possession under, inter alia, ground 8, Schedule 2 of the Housing Act 1988, having served notice seeking possession.

At the possession hearing Ms O′Connell was represented by the duty solicitor who was without papers and thus had little opportunity to prepare when the case was called. The Judge adjourned the hearing to 5pm that same day at which the duty solicitor asked for a further adjournment as he felt that there were issues relating to disability discrimination and Article 8. There was no evidence of any disability before the judge. HHJ Knowles, on finding that ground 8, Schedule 2 of the Housing Act 1988 had been made out, made an order for possession and payment of rent arrears and costs.

Ms O′Connell sought to appeal the order on, inter alia, the basis that the Judge was wrong not to adjourn the proceedings. Ms O′Connell was a disabled person for the purposes of the Equality Act 2010. Her disability substantially compromised her capacity to manage her legal and financial affairs. Further, she had been unable to secure legal representation sufficiently in advance of the hearing. VH submitted that Ms O′Connell had failed to provide any evidence of her disability despite receiving ample notice of the possession hearing (7½ weeks having lapsed between issue of the Claim Form and the hearing).

In dismissing the application, Mr Justice Tugendhat found that there was no evidence before the Court upon which the Judge could have found that there was a seriously arguable case that the arrears that had accrued were the consequence of any disability. Furthermore there was no dispute that Ms O′Connell now had a second property, and that she had failed either to move into it or to sell it.

Philippa Seal / 12th Jul 2012


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