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“You can’t evict me – I’m disabled”: Akerman-Livingstone v Aster Communities Limited [2015] UKSC 15

Following Ackerman-Livingstone:

  • disability discrimination is recognised as a defence to possession proceedings brought by social landlords
  • in most cases where this defence is raised, the landlord will not be able to obtain possession summarily
  • where the tenant can demonstrate a disability, the case will proceed to a full hearing where the burden will normally be on the landlord to show that its decision to seek possession against the tenant is proportionate, bearing the disability in mind
  • the court will evaluate the proportionality of the eviction for itself, and the need to allocate social housing as a scarce resource will not necessarily carry the day for the landlord

In this case, the tenant had been diagnosed with Prolonged Duress Stress Disorder following abuse as a child and being “failed by the system”. He was being housed in temporary accommodation on a one-week periodic tenancy under the local authority’s homelessness duties. There were 11 bids for various flats, several of which were successful, and one of which was on the same street as his temporary accommodation. He still refused to move. His position was that he could not move until he had therapy for his PDSD, and that because of his PDSD, he was unable to engage in any therapy. An expert psychologist said that he had seldom seen anyone in more need of therapy than the tenant, and that his behaviour was a result of his disorder.

The landlord sought possession. The tenant said that he was the subject of disability discrimination, because his inability to move “arose out of his mental illness” – [39]. This was a case, he said, where equality legislation required his landlord to treat him differently from someone who was not disabled.

The Supreme Court held that whereas social landlords will usually be able to defeat Article 8 defences at the summary stage, they will rarely be able to do the same with discrimination defences – [60]. The court will normally have to decide for itself whether or not the landlord’s decision to seek possession is proportionate. In doing so, it will consider whether there was any lesser action which the landlord could have taken – [38-39]. Even if there was not, it may still decide that “the impact of being required to move from this particular place on this particular disabled person may be such that it is not outweighed by the benefits to the local authority or social landlord of being able to regain possession” – [31].

On the facts of this case, the social landlord was now being required by a mortgagee to deliver up the building in question with vacant possession. The Supreme Court was unanimous that this meant the purported discrimination defence could not succeed, and granted the landlord possession. Landlords who have housed potentially disabled tenants in the private sector will no doubt see this as a ray of hope. Otherwise, social landlords should expect to be faced with many more discrimination defences in the years to come.

Ross Beaton / 1st Apr 2015


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