Floyd v S (Equality and Human Rights Commission intervening)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Mummery
Judgment Date18 March 2008
Neutral Citation[2008] EWCA Civ 201
Date18 March 2008
Docket NumberCase No: B5/2006/2480

[2008] EWCA Civ 201




His Honour Judge Simpkiss

Case No: 4BR.25929


Lord Justice Mummery

Lord Justice Lawrence Collins and

Mr Justice Munby

Case No: B5/2006/2480

Jacqueline Floyd
The Equality and Human Rights Commission

Mr Jan Luba QC and Mr Michael Paget (instructed by BHT Advice) for the Appellant

Mr David Giles (instructed by Sherringtons) for the Respondent

Mr Robert Latham and Miss Catherine Casserley (instructed by the Solicitor for the Equality and Human Rights Commission) for the Intervener

Hearing date: 26 th February 2008

Lord Justice Mummery

This is the judgment of the court to which all members of the court have contributed.


As presented to us, this appeal raises, amongst other issues, a fundamentally important point of principle as to the inter-relationship between the Housing Act 1988 (the 1988 Act) and the Disability Discrimination Act 1995 (the 1995 Act). In the event the appeal fails but the case illustrates the urgent need for clarification by the House of Lords of the scope of the 1995 Act, a matter to which we return at the end of this judgment.

The background


The appellant, S, appeals, with permission granted by Sir Henry Brooke on 15 January 2007, from an order of His Honour Judge Simpkiss in the Brighton County Court on 31 October 2006. Judge Simpkiss allowed S's application for permission to appeal but dismissed his appeal from an order made by District Judge Fawcett on 9 June 2006 ordering him to give the respondent, Mrs Floyd, possession of a flat in Hove and to pay her £7,920 for the “balance admitted” of the rent.


S had been the assured tenant of the premises since May 1996. There were earlier proceedings between the parties culminating in an order made by consent in the Brighton County Court on 20 March 2001 requiring S to pay Mrs Floyd £4,206.80 within 6 months. On S's own admission the whole of that sum remains outstanding.


In September 2003 the rent again fell into arrears.


On 3 March 2006 Mrs Floyd gave S notice in the appropriate form (see section 8 of the 1988 Act) that she intended to apply to the court for a possession order on Grounds 8, 10 and 11 in Schedule 2 to the 1988 Act. The particulars of claim, relying on the same grounds, were issued on 6 April 2006.


Grounds 10 and 11 give the court a discretionary power to make a possession order in certain circumstances “if it considers it reasonable to do so”: section 7(4) of the 1988 Act. Ground 8, in contrast, is a mandatory ground under which the court must make an order (see section 7(3)) if at least eight weeks' rent lawfully due is unpaid both at the date of the service of the notice under section 8 and at the date of the hearing.


S filed a defence on 8 June 2006. It was, we were told, drafted by S himself. It is in his handwriting. It raised a number of matters and stated that S “is counter-claiming for compensation for 'constructive harassment' resulting from [the landlord's] unlawful claims”. It went on, however, to say that, without prejudice to the counterclaim, S “recognises that the rent payments suspended by him for due reason amount to £7,920”. He further pleaded that accrued housing benefit due to him and held by the local authority was in excess of £8,200. Against the rubric “If you believe you would suffer exceptional hardship by being ordered to leave the property immediately, say why”, S wrote:

“Defendant contends that due to issues of ill-health, disability and old age he would suffer exceptional hardship if any effective possession order were to be granted (and not also suspended). Please see attached supplementary page … for further details”.


That document (the supplementary page) also, we were told, was drafted by S himself and typed out by him. The relevant parts are as follows (we add the paragraph numbers for ease of reference):

i) In paragraph 1 S said that in 1996 he became unwell and in 1997 was awarded incapacity benefit, the prognosis being that he was unlikely ever again to be able to obtain and sustain paid employment.

ii) In paragraph 3 he explained that what he refers to as the landlord's “illegitimate and excessive demand” for increased rent in 2003 caused him “great distress” and “caused [him] to suspend payments of rent.”

iii) In paragraph 4, referring to the housing benefit being held by the local authority, he said that he had “access to funds to fully settle all legitimate expectations” of the landlady “particularly when offset against a settlement in [his] favour as compensation for the distress and detriment caused to him by [her] unreasonable and illegitimate demands and actions and inactions”.

iv) He concluded in paragraph 5:

“Thus, … it is submitted that Defendant's disability and health issues, coupled with his advanced age”– we were told that he is in fact 62 –“and the importance to his emotional well-being of continuing to have the security of a full assured tenancy would overwhelmingly support dismissal of the present claim for possession or, if not dismissed, then suspension of any possession order to be made”.


Those documents were sent to the court under cover of a letter from S dated 8 June 2006 enclosing copies of various party and party correspondence and also a letter from the local authority dated 21 June 2005 showing that at that date the arrears of housing benefit due to S totalled £4,771. A manuscript annotation in S's handwriting indicates that as of 4 June 2006 the arrears of benefit were £8,188 “or more”.

The hearing before the District Judge


On the day of the hearing, S had the benefit of representation by Mr Leaver, who is employed by Brighton Housing Trust as one of its team of Housing Advisers appeared under the county court duty representation scheme. Mr Leaver has considerable experience of helping tenants suffering from mental health problems or mental impairment. Mrs Floyd was represented by Mr Jones.


There is a transcript of the proceedings before the District Judge. The District Judge said that she had read the papers. The transcript continues:

“THE DISTRICT JUDGE: They appear to be admitted arrears, do they not?


We can pick it up a little later:

“MR LEAVER: Madam, there are admitted arrears, I think –

THE DISTRICT JUDGE: Are they not in excess of £7,000?

MR LEAVER: – what we had asked for in this matter is for the proceedings to be halted because I have got concerns about Mr S's mental capacity and we would like to request that the proceedings be halted while we look into this matter under CPR Order 21.

THE DISTRICT JUDGE: Yes but the difficulty is, of course, he has admitted arrears, has he not, in his defence which are more than eight weeks. I mean, what has his mental capacity got to do with that? After all, Mrs Floyd, she is not a social landlord.

MR LEAVER: She is not, no.

THE DISTRICT JUDGE: She has no social responsibilities to your client, she is entitled to her rent and he has admitted he has got arrears in excess of £7,000; that is the problem, is it not?

MR LEAVER: We admit the arrears, our concerns are making a possession order with someone that may be lacking capacity and is extremely vulnerable.

THE DISTRICT JUDGE: Well perhaps he is but it is not Mrs Floyd's responsibility, that is the Local Authority's, is it not?

MR LEAVER: Eventually it would be, yes.

THE DISTRICT JUDGE: Yes, well why is it that Mrs Floyd has to bear the brunt of social problems? She has not had her rent. Your client admits that he is £7,000 in arrears. Whether he has mental problems or not that does not give him a defence, does it, under ground 8?

MR LEAVER: It does not give him a defence of – I took some advice earlier and was advised to ask for a halt in the proceedings under CPR Order 21.

THE DISTRICT JUDGE: Well I do not think it is appropriate, I mean, this has been going on for so long …

MR LEAVER: No, I do not. The proceedings under section 8, there is no defence under section 8 –


MR LEAVER: – and we are not disputing that –

THE DISTRICT JUDGE: So she is entitled to possession.

MR LEAVER: – what I was asking for was that the proceedings could be stayed under CPR 21.

THE DISTRICT JUDGE: I do not think that is appropriate …”

And a little later:

“THE DISTRICT JUDGE: Well I cannot see that there is any defence whether or not your client is mentally ill or not.”


The District Judge accordingly made a possession order.

The hearing before His Honour Judge Simpkiss


S sought permission to appeal. His application was heard by His Honour Judge Simpkiss, who gave judgment on 31 October 2006. Judge Simpkiss gave S permission to appeal but dismissed the appeal.

The appeal


Sir Henry Brooke gave permission to appeal on 15 January 2007. The appeal had been fixed for hearing on 8 May 2007 but was vacated to await the outcome of the appeal in Lewisham London Borough Council v Malcolm (Disability Rights Commission intervening) [2007] EWCA Civ 763, [2008] 2 WLR 369, in which judgment was in the event given on 25 July 2007.

The grounds of appeal


Before Judge Simpkiss, as before us, the appeal was put on the basis that the District Judge was wrong in refusing to grant an adjournment. Our focus, as the focus of the submissions we heard, must accordingly be on the reasoning and decision of the District Judge.


On behalf of S Mr Jan Luba QC and Mr Michael Paget mount their attack on the decision of the District Judge on three separate grounds:

i) First, they...

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2 cases
  • Lewisham London Borough Council v Malcolm
    • United Kingdom
    • House of Lords
    • 25 June 2008
    ...committed a gross breach of the terms of the tenancy, as it did in S v Floyd (The Equality and Human Rights Commission intervening) [2008] EWCA Civ 201, para 48, where Mummery LJ, giving the judgment of the Court of Appeal, said: "It is not immediately obvious … (b) how a landlord wou......
  • Wright v Croydon London Borough Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 10 April 2008
    ...is not enough. 9 Obviously the question is of major importance. Mummery LJ actually considered this very case in S v Floyd & Anr [2008] EWCA Civ 201, decided only on the 18 March. He was concerned with a situation where a tenant was in breach of his lease, having sublet contrary to the ......

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