Housing – disability – discrimination – possession – mental impairment
B, the tenant of residential premises owned by North Devon Homes Ltd, had been a “problem tenant” and admitted to persistent anti-social behaviour, including shouting at neighbouring residents, keeping neighbours awake at night by banging and shouting and using foul language in front of neighbours. It was common ground that B’s problem behaviour stemmed largely from a mental impairment (diagnosed as paranoid psychosis) which had a substantial and long term effect on her ability to carry out normal day-to-day activities, and that B was therefore a disabled person within the meaning of the Disability Discrimination Act 1995 (DDA).
The landlord had initiated possession proceedings, relying on a notice served under s8 Housing Act 198, on the basis that B’s behaviour was in breach of the tenancy agreement which contained a covenant to use the premises “so as to ensure that no nuisance, annoyance, inconvenience or harassment” was caused to neighbours or to the public.
The recorder made a possession order holding that, whilst the landlord’s conduct in evicting B was unlawful by virtue of the DDA 1995, it was not appropriate in the circumstances to allow the 1995 Act to override the Court’s discretion, accorded by s7 Housing Act 198, to make an order for possession if it considered it reasonable to do so.
B appealed against that decision to the High Court. Though B conceded that she was in breach of the tenancy agreement, she argued that the application for possession constituted eviction and was unlawful by reason of the DDA, and it was inappropriate for the recorder to exercise his discretion in favour of the possession order.
The Court found that the breach of the tenancy terms was caused by B’s disability since she was unable to prevent herself from behaving in that manner. As a disabled person, B could not be treated less favourably than someone who was not similarly disabled.
The whole purpose of possession proceedings was to regain possession by evicting the tenant. In any event, the proceedings by their very nature, subjected B to a “detriment” and it was unlawful for the landlord to discriminate against B by evicting her or subjecting her to a detriment by reason of her disability, under s22(3)(c) DDA 1995. That discrimination could not be justified, in the instant case, on the basis that that the eviction was necessary “in order not to endanger the health or safety of any person (including the disabled person)” within the meaning of s24 DDA 1995.
The judge went on to point out that the DDA did not bar evictions: only those that were not justified by the specific circumstances set out in s.24. It might be concluded in future that steps should be taken to evict B because the health and safety of her neighbours were prejudiced but that situation had not arisen. The fact that B’s eviction was not justified by the terms of the 1995 Act and was thus unlawful was a highly relevant consideration in the exercise of the discretion under s7 of the Housing Act 1988, although it was not determinative. The 1995 Act furnished its own code for justified eviction and that higher threshold had not been reached. It was not appropriate in this case to make a possession order.