Aster Communities Ltd (formerly Flourish Homes Ltd) v Jonathan Akerman-Livingstone
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lady Justice Black,Lord Justice Briggs |
| Judgment Date | 30 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1081 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 2014 |
| Docket Number | Case No: A2/2013/3161 |
[2014] EWCA Civ 1081
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
The Hon. Justice Cranston
IYE00912
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lady Justice Black
and
Lord Justice Briggs
Case No: A2/2013/3161
Mr Jan Luba QC and Mr Russell James (instructed by Shelter Legal Services, Bristol) for the Appellant
Mr Nicholas Grundy and Miss Sara Beecham (instructed by Clarke Willmott LLP) for the Respondent
Hearing date: Thursday 12 th June 2014
APPELLANT SEEKS TO RESIST POSSESSION PROCEEDINGS BY HIS SOCIAL LANDLORD ON GROUNDS OF HIS DISABILITY
Mr Jonathan Akerman-Livingstone has a severe prolonged duress stress disorder ("PDSD"). In 2010, he was homeless. He went to his local housing authority ("LHA"), Mendip District Council ("MDC"). They agreed that they owed him the duty to secure that housing was available for him imposed by Parliament (section 193(2), Housing Act 1996 ("HA 1996")). I will call this "the main housing duty" (the expression adopted in section 200 (1)(b) of the HA 1996)., and it lasts until one of the events which Parliament has specified in section 193(5) to (7AA) occurs. These events include refusal to accept suitable accommodation offered by the LHA. So MDC ensured that Mr Akerman-Livingstone got temporary accommodation with what later became Aster Communities Ltd ("Aster"), which is a housing association. Mr Akerman-Livingstone became the tenant of Flat 1, Pilgrim's Tap in Glastonbury ("the property"), which was their property.
Then MDC wanted Mr Akerman-Livingstone to choose another property as his permanent accommodation. Mr Akerman-Livingstone had to choose between different properties. He is a very sick man. He could not cope with what was involved. Eventually there came a time when MDC said that they had discharged their duty. At that point their main housing duty came to an end. MDC then required Aster to take proceedings to evict Mr Akerman-Livingstone from the property so that it could be made available to another homeless person to whom MDC owed the main housing duty. When Aster did this, Mr Akerman-Livingstone said that the bringing of the proceedings amounted to discrimination against him by reason of his disability in breach of section 15 of the Equality Act 2010 (" EA 2010"). If this defence succeeded the court could not make a possession order.
Section 15 of the EA 2010 provides:
"15 Discrimination arising from disability
(1) 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.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability."
The question on this appeal was whether there had to be a trial. Mr Akerman-Livingstone wanted there to be a full trial. Aster opposed that. On 7 June 2013, the judge, HHJ Denyer, sitting in the Bristol County Court, agreed with Aster. He held that, in the light of Aster's aims in getting back possession of the property to comply with MDC's direction, Mr Akerman-Livingstone did not have a seriously arguable case that Aster had breached the EA 2010. So there was no need for a trial and Aster should have an immediate possession order. By order dated 14 October 2013, Cranston J dismissed Mr Akerman-Livingstone's appeal against this order. Mr Akerman-Livingstone now appeals to us against the order of Cranston J.
WHAT MR AKERMAN-LIVINGSTONE HAS TO SHOW TO SUCCEED ON HIS DEFENCE OF DISABILITY DISCRIMINATION
The conduct of the case below makes the question to be decided on this appeal look like a procedural question: should there be a full trial or can the court deal with the case summarily? But the question also involves deciding what Mr Akerman-Livingstone would have to show at trial in order to succeed in his defence. A particular difficulty for Mr Akerman-Livingstone is that, even if the institution of these proceedings is capable of amounting to an act of discrimination on the grounds of Mr Akerman-Livingstone's disability, it will not in fact be unlawful discrimination, even assuming that Mr Akerman-Livingstone is able to prove his disability to the full, if Aster can show that the proceedings are "a proportionate means of achieving a legitimate aim" within section 15(1)(b) of the EA 2010. This much is common ground.
Moreover, under section 136 of the EA 2010, the burden of proof is shared. Section 136 in material part provides:
"136 Burden of proof
(1) This section applies to any proceedings relating to a contravention of this Act.
(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
(3) But subsection (2) does not apply if A shows that A did not contravene the provision…"
Mr Akerman-Livingstone has therefore to do no more than show that there are facts from which, in the absence of some other explanation, the court could conclude that Aster had discriminated against him. Aster bears the burden of showing that the pursuit of the proceedings is "a proportionate means of achieving a legitimate aim".
COURTS BELOW RELY ON ANALOGY WITH ARTICLE 8 CASES
In the courts below, the judges drew on an analogy with Article 8(2) of the European Convention on Human Rights ("the Convention"). Article 8(1) guarantees the right to respect for a person's home, but this right is qualified by Article 8(2), which requires (so far as relevant) that any interference with this right by a public authority must be necessary for certain purposes, including national security, economic well-being and the protection of other people's rights.
The European Court of Human Rights ("the Strasbourg court") has read into Article 8(2) a further requirement that the proposed interference with the right conferred by Article 8(1) is a proportionate means of achieving a legitimate aim. Where a tenant relies on Article 8, it will be for him to show that the making of an outright possession order is disproportionate. The burden is not shared as it would be under section 136 of the EA 2010.
The effect of two recent decisions of the Supreme Court is that, where a tenant relies on Article 8(1) as a defence to possession proceedings brought by a LHA or a social landlord such as Aster, he must show a seriously arguable case and that the threshold for raising an arguable case on proportionality is a high one, which would only succeed in a small proportion of cases. The two cases are Manchester City Council v Pinnock [2011] 2 AC 104 and Hounslow LBC v Powell [2011] 2 AC 186. Powell is the name of the lead appeal in a group of cases in which judgment was given at the same time.
In Pinnock, Lord Neuberger gave the judgment of the court. He held that where a court was asked to make a possession order in favour of a social landlord against a person occupying accommodation under a "demoted" secure tenancy (a secure tenancy which the court has decided should have reduced rights of security of tenure because of anti-social behaviour) who raised a defence under Article 8, it had to determine whether it would be proportionate to make the order. The Supreme Court further held that the proportionality of making a possession order was supported by what Lord Hope, in Powell at [36], called the "twin aims" of making a possession order. These were: (1) vindicating the housing authority's ownership of the property and (2) enabling it to fulfil its public duties on the allocation and management of its housing stock. Where a social landlord was entitled to possession under domestic law, there would be a strong case for saying that the making of a possession order was proportionate. It held that there was no need for the housing authority to explain and justify its reasons for seeking a possession order (in the majority of cases).
Lord Neuberger held that the court should initially address the Article 8 defence summarily. If the court was satisfied that, even if the facts relied on were made out, the Article 8 defence would not affect the order to be made, there was no need for the case to go to trial. The defendant would be likely to succeed normally only in a very small proportion of cases. The court would only be concerned to investigate the tenant's personal circumstances and not with the reasons why the landlord sought possession.
The Strasbourg court ruled that an application to challenge in Pinnock was inadmissible (App no 31673/11).
Powell raised the question whether that principle applied to the homelessness and introductory tenancy schemes. In these cases, the Supreme Court gave further consideration to how the court in possession proceedings should approach the proportionality exercise. On this point, the Supreme Court held that the court only needed to consider an Article 8 point if it was raised by the defendant and crossed the high threshold of being seriously arguable. The question for a court was whether making an order for the occupier's eviction is a proportionate means of achieving a legitimate aim. In deciding this issue, the court needed to be concerned only with any factual dispute and the tenant's personal circumstances.
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