Akerman-Livingstone v Aster Communities Ltd (formerly Flourish Homes Ltd)

JurisdictionEngland & Wales
JudgeLord Neuberger,Lord Hughes,Lord Clarke,Lady Hale,Lord Wilson
Judgment Date11 March 2015
Neutral Citation[2015] UKSC 15
CourtSupreme Court

[2015] UKSC 15

THE SUPREME COURT

Hilary Term

On appeal from: [2014] EWCA Civ 1081

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Clarke

Lord Wilson

Lord Hughes

Akerman-Livingstone
(Appellant)
and
Aster Communities Limited (formerly Flourish Homes Limited)
(Respondent)

Appellant

Jan Luba QC Russell James Catherine Casserley

(Instructed by Shelter Legal Services)

Respondent

Daniel Stilitz QC Nicholas Grundy Sara Beecham

(Instructed by Clarke Willmott LLP)

Intervener

Monica Carss-Frisk QC Jason Pobjoy

(Instructed by Equality and Human Rights Commission)

Heard on 10 December 2014

Lady Hale
1

This appeal is about the proper approach of the courts where the defendant to a claim for possession of his home raises a defence of unlawful discrimination, contrary to the Equality Act 2010, by the claimant landlord. In particular, the issue is whether the courts are entitled to take the same summary approach to such a defence, where the claimant is a social landlord, as they can normally take to a defence asserting that eviction by a public authority would breach the right to respect for the defendant's home, which is protected by article 8 of the European Convention on Human Rights. Do the principles applicable to article 8 defences, laid down by the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104 (" Pinnock") and Hounslow London Borough Council v Powell [2011] UKSC 8, [2011] 2 AC 186 (" Powell") also apply to discrimination defences?

2

The issue could arise, whichever of the characteristics protected by the Equality Act 2010 is relied upon by the defendant to support a discrimination defence, and whatever the type of discrimination complained of. However, this case is concerned with the protected characteristic of disability, which can raise different equality issues from those raised by a claim of, say, sex or race discrimination. Whereas treating a man equally with a woman usually means treating him in the same way as a woman is treated, treating a disabled person equally with a non-disabled person may mean treating him differently from a non-disabled person. This is in order to ensure that he can play a full part in society despite his disabilities.

This case
3

The appellant is a 47-year-old man who has been diagnosed with Prolonged Duress Stress Disorder or Complex Post Traumatic Stress Disorder. This is the result of sustained physical and emotional abuse by his parents when he was a child, exacerbated by his having been "failed by the system". Disability is one of the protected characteristics listed in section 4 of the Equality Act 2010. The basic definition of disability is contained in section 6, which provides that a person has a disability if (a) he has a physical or mental impairment, and (b) the impairment has a substantial and long term adverse effect upon his ability to carry out normal day to day activities. This is fleshed out by Schedule 1 to the Act and by the Equality Act 2010 (Disability) Regulations 2010. It is not in dispute that the appellant's mental ill-health is so chronic and severe that he falls within this definition.

4

The appellant became homeless in 2010. In June, the local housing authority in the district where he lives ("the council") accepted that it owed him a duty, under section 193(2) of the Housing Act 1996, to secure that accommodation was available to him. The council had an agreement with a housing association, Flourish, that it would grant tenancies to people to whom the council owed duties under the 1996 Act. Pursuant to that agreement, in August 2010, a one bed-roomed ground floor flat in Glastonbury was let to the appellant on a weekly periodic tenancy.

5

The duty to secure accommodation for a homeless person under section 193(2) of the 1996 Act is not intended to last indefinitely. Broadly speaking, it comes to an end if he obtains accommodation elsewhere or if he refuses an offer of suitable accommodation elsewhere, in particular if he refuses a final offer of social housing under Part 6 of the 1996 Act (section 193(7)). The appellant joined the council's choice-based scheme for the allocation of social housing, known as "Homefinder Somerset", and over the next nine months various attempts were made to find an acceptable home for him. He put in bids for two properties in Wells, but later withdrew these because he associated Wells with his childhood abuse. Another bid for a property in Wells was unsuccessful. He successfully bid for a property in Meare, Glastonbury but then declined this as it was too far from his GP. He declined to bid for two more properties, one in Wells and one in Glastonbury, which he was told were open for bids. And he objected to three more bids, one in Wells and two in Street, which the council placed on his behalf. His community psychiatric nurse supported the objection to Wells and so the bid was withdrawn.

6

In March 2011, the council wrote to him formally making a final offer of one of the properties in Street. He declined to accept this. Hence in April the council wrote notifying him that it considered that its duty under section 193 had been discharged. He requested a review under section 202 of the 1996 Act. The review upheld the original decision that the property was suitable for him and in the same letter the council told him that it would be terminating the provision of temporary accommodation for him in the Glastonbury flat. Accordingly, Flourish served a notice to quit, expiring on 21 August 2011; and on 15 September, it issued a claim for possession in the Yeovil County Court. At the first hearing on 20 October 2011, this was adjourned for the appellant to obtain legal representation.

7

When the case returned to the county court on 15 December, District Judge Smith had before him the first report of a Chartered Psychologist, Mr Callow, whom the appellant had consulted for the purpose of these proceedings. He had examined the appellant twice and administered a variety of psychometric tests. He described the appellant as "very vulnerable" and "desperately in need of intensive therapy to help him overcome the traumas" from which he had suffered. He also supported the appellant's claim that he could not live in Street, because of its associations with his childhood.

8

The district judge gave a short judgment in which he took the view (i) that on the issue of whether the proposed possession order was proportionate for the purpose of article 8, "it falls just beyond the line of its being sufficiently clear that I can say that it cannot apply" (para 24); and (ii) that he did not rule out the Equality Act defence, "but I think there will be formidable problems in maintaining it" (para 26). He concluded that "we are going to have a contested hearing about it not later than the end of January when all these issues can be established" (para 27). Hence he ordered the appellant to file and serve a defence, made provision for the service of any witness statements, and listed the claim for a hearing on 26 January 2012. The defence filed that same day raised three defences: disability discrimination, article 8 and a public law defence based primarily on breach of the public sector equality duty. Mr Callow made a second report, dated 23 January 2012, confirming his opinion that the appellant suffers from a disability within the meaning of the Equality Act and that the accommodation in Street was unsuitable for him because of that disability. However, when the case came back before District Judge Smith on 26 January 2012, he ordered that it be transferred to Bristol County Court for hearing as soon as possible, with a longer time estimate because of the issues raised under the Equality Act.

9

In the meantime, on 15 December the appellant had also made a fresh homelessness application to the council. This was rejected in April 2012, on the ground that he was intentionally homeless. But in July that decision was overturned on review and the council therefore accepted again that it owed him the duty under section 193(2) of the 1996 Act. By this time Flourish had merged with two other housing associations to form Aster Communities, which became the appellant's landlord. Bristol County Court had listed the case for a two-day trial on 18 July 2012 and Mr Callow had prepared a third report on 2 July 2012. In this he stated that "we are not dealing here with a man who thinks and behaves in a reasonable and socially acceptable way but with someone who is profoundly mentally ill and who needs help". Given the council's change of view, the trial was vacated on Aster's application and the case adjourned by consent with liberty to restore.

10

In September 2012, Aster wrote to the appellant offering him a starter tenancy of a property in the same road in Glastonbury as his current accommodation. Another property in Glastonbury was also available for him, but the appellant did not wish to apply for that. On 27 September 2012 he declined the offer of the property in the same road. In October 2012, the council wrote to notify the appellant of their decision that their duty to him was discharged because of his refusal of suitable accommodation. He did not seek a review of that decision.

11

Later that month, Aster applied to reinstate the claim for possession. Although the case had previously been set down for a full trial, this time it was listed "for a preliminary hearing to decide whether or not a proportionality and/or Equality Act 2010 defence can be raised". That hearing was originally listed for February 2013 and Mr Callow made a further report dated 11 February 2013. In this he stated that, "it is impossible to say definitively that [the appellant's] inaction and/or failure was wholly attributable to his condition, but I would say that his condition seems likely to have played a major part in this...

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