Under S. 15 Equality Act 2010 (‘EqA’) 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. A person managing premises must not discriminate against a occupier by, among other matters, evicting him (S. 35 EqA). In Aster Communities v Akerman-Livingstone  AC 1399 the Supreme Court considered the proportionality exercise under S. 15 in the context of possession proceedings.
Paragon Asra Housing (‘Paragon’) brought possession proceedings against Mr Neville for nuisance and harassment. Mr Neville admitted he had breached his obligations under his tenancy agreement, but asserted that the breaches arose in consequence of his disability in the form of personality and behavioural disorders and that the possession claim discriminated against him contrary to EqA. The parties agreed a suspended possession order. The order recorded that Paragon accepted that Mr Neville was disabled within the meaning of EqA and that the court found it reasonable to make an order for possession.
There were continuing complaints about Mr Neville’s conduct and Paragon issued a warrant for possession. Mr Neville applied to suspend the warrant. The District Judge held that the proportionality issue under S. 15 EqA had already been considered at the time the possession order was made and, as there was no suggestion of any material change of circumstances, it was unnecessary for the court to consider whether the eviction would discriminate against Mr Neville on disability grounds. Mr Neville’s appeal against the refusal to suspend the warrant was allowed on the basis that the EqA provisions had not been considered.
The Court of Appeal agreed with the District Judge, holding that the proportionality enquiry had already undertaken when making the possession order. Unless there was a material change of circumstances, the tenant had no right to require the court to reconsider this question at enforcement stage. The Court held: ‘The recognition of such a right would be a recipe for repeated applications of a vexatious nature [para. 51]’. However, the Court acknowledged that, if at enforcement stage there had been a material change of circumstances, the proportionality enquiry under S. 15 EqA would have to be reconsidered.