Manchester City Council v Romano; Manchester City Council v Samari
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 29 June 2004 |
| Neutral Citation | [2004] EWCA Civ 834 |
| Docket Number | Case No: (1) B2/2003/2515 & |
| Court | Court of Appeal (Civil Division) |
| Date | 29 June 2004 |
[2004] EWCA Civ 834
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
Judge Armitage QC (1) and (2)
District Judge Jones (1)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Brooke
Vice-President of The Court of Appeal (Civil Division)
Lord Justice Jacob and
Sir Martin Nourse
Case No: (1) B2/2003/2515 &
(2) B2/2003/2576
Jan Luba QC, Alyson Kilpatrick (1) and Alex Durance (2) (instructed by Glaisyers) for the Appellants
Andrew Arden QC, Michael Lemmy (1) & Robert Darbyshire (2) (instructed by Chief Executive's Department, Manchester City Council) for the Respondents
Jill Brown (instructed by the D.R.C.'s Legal Services Department) for the Disability Rights Commission
INDEX
Number Para Number
Introduction 1
Ms Romano: the facts 3
Ms Samari: the facts 11
Reasonableness and the 1995 Act 18
The 1995 Act 22
The meaning of "disability" 23
The meaning of "discrimination" 37
Sections 22 and 24 of the Act 48
Justification: section 24(2) -(3) 56
Disability discrimination: How Part III of the Act is enforced 61
The relationship between the 1995 Act and the housing legislation 65
Ms Romano
The medical evidence 76
The judge's findings 86
The submissions of the parties 87
Conclusions 91
Ms Samari
Medical Evidence 95
The judge's findings 99
The submissions of the parties 101
Conclusions on the medical evidence 104
Justification 105
Concluding comments 115
Lord Justice BrookeThis is the judgment of the court.
Introduction
These are appeals by the two defendants Sharon Romano and Yvonne Samari from orders made against them by Judge Armitage QC at the Manchester County Court on 11 th and 13 th November 2003 respectively. The orders were made in favour of their landlords, Manchester City Council ("the council") . The defendants were both secure tenants, and in each case one of the grounds for the possession order was ground 2 of Schedule 2 of the Housing Act 1985 as amended, which provides a ground for possession where:
"the tenant or a person residing in or visiting the dwelling house –
(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality …"
and where it is reasonable to make the order.
In Ms Romano's case the judge dismissed an appeal from the earlier order by District Judge Jones to which we refer in paragraph 6 below. In Ms Samari's case he made an order for possession as the trial judge.
The judge made an order for possession against Ms Samari because he considered it reasonable to do so in all the circumstances. He dismissed Ms Romano's appeal because he did not consider that the district judge had been wrong to refuse to suspend the execution of the warrant of possession. The only issue which arises on these appeals – and it is a very important one – relates to the interface between housing legislation and the Disability Discrimination Act 1995 ("the 1995 Act") (and in particular, sections 22(3) and 24 of that Act) . The court permitted the Disability Rights Commission ("DRC") to intervene in the appeals, and we have benefited from the argument of Ms Jill Brown on its behalf.
Ms Romano: The facts
The facts in each case can be stated relatively briefly. Ms Romano became the council's tenant at a house in Moorcroft Road, Northern Moor, Manchester in November 1998, and her tenancy became a secure tenancy a year later. In May 2001 Mr Recorder Leeming QC granted an injunction restraining her anti-social behaviour towards her neighbours, Mr and Mrs Schofield, and on 13 th June this injunction was continued in force for a further period of six months.
Prior to 13 th June Ms Romano had been convicted of an assault on Mrs Schofield which occasioned actual bodily harm in an incident involving the throwing of a brick. Her conviction was later set aside on appeal because the Crown Court did not accept Mrs Schofield's evidence, at any rate to the requisite standard of proof.
On 16 th November 2001 the council issued possession proceedings, founded on rent arrears and 60 incidents of anti-social behaviour on the part of Ms Romano and her son W between the last week of April and the first week of November 2001. Apart from the assault, the council's allegations related to the playing of loud music at inappropriate times, foul and abusive language, rowdy and abusive behaviour on the part of her sons and visitors, and loud banging and noise as a result of "do it yourself" work in the early hours of the morning. On 10 th January 2002 an order for possession was made against her, suspended for two years on condition that she complied with four of her tenancy conditions which were mentioned on the face of the order, and also on condition that no person residing in or visiting her house caused a nuisance or annoyance to anyone residing, visiting or otherwise engaging in a lawful activity in the locality.
On 11 th November 2002 the council sought permission to apply for a warrant of possession because there had been breaches of the conditions of the suspended possession order. They relied on 13 allegations of nuisance (by loud music and hammering) between 20 th February 2002 and 26 th October 2002. On 7 th January 2003 District Judge Jones made an order permitting the council to issue a warrant of possession on the basis of admissions by Ms Romano that she had committed breaches of the conditions in the suspended possession order. The warrant was issued on 30 th January, and on 14 th February District Judge Jones dismissed Ms Romano's application to suspend the execution of the warrant. He gave a reserved judgment on each occasion. Ms Romano then appealed to Judge Armitage.
At the hearing on 7 th January District Judge Jones heard oral evidence from Mr Schofield and Ms Perilla (who spent some time in Mr Schofield's house) on behalf of the council, and from Ms Romano and one of her neighbours, and from Mr Wade, who helped her with DIY work, on behalf of the defence. The district judge preferred the claimants' evidence, and found 12 of the allegations proved. In particular, he found that on 5 th November 2002 loud music had been emitted from her property, for which she apologised the following day on behalf of her sons. She offered to "cut off all the plugs" in order to appease Mr Schofield. In general, the district judge said that the evidence concerning excessive noise from loud music appeared to be overwhelming.
In his February judgment the district judge said that on the basis of the number of incidents the nuisance from loud music had abated since January 2002, but he had found in January 2003 that there was still a substantial volume of noise coming from Ms Romano's premises. He was not persuaded that she was able to prevent her children from causing further nuisance from noise, despite her apologies for what had happened in the past. There had been three further matters of complaint since his judgment in January 2003, two of them involving loud noise (most recently at 3.25am one morning) .
On this occasion the district judge had received a report from Ms Romano's GP, Dr Capek, who said she was unable to deliver what she promised, and that she might have outbursts which she did not recall clearly. The district judge was particularly impressed, when deciding to make his order, by Ms Romano's recent admissions that the earlier allegations about noise that had been made against her were true, and by Dr Capek's evidence that she was unable to deliver what she promised.
In spite of contrite witness statements from Ms Romano and her two sons, and witness statements from two other neighbours to the effect that they did not find the noise a nuisance, the district judge refused to suspend the execution of the warrant. No point on the 1995 Act was taken before him. We will refer in paragraphs 76–86 below to the medical evidence before Judge Armitage and his approach to that evidence.
Ms Samari: the facts
Ms Samari took a tenancy of premises in Harmer Close, Newton Heath, Manchester in March 2001, and became a secure tenant a year later. She has two children, who were aged 10 and 9 at the date of Judge Armitage's judgment. In this case, too, it was the next door neighbours who complained to the council about her conduct.
On 11 th June 2002 an injunction was granted against her, effective for one year, prohibiting five distinct types of misconduct directed towards anyone residing, visiting or engaging in lawful activity in the vicinity of her home. On 29 th October, on an application for her committal, she admitted to the court two breaches of this order, but no order was made consequent on these breaches.
On 26 th June 2003 the council served a notice seeking possession on her. It relied on specific incidents in April, May, and August 2002 and in April 2003. It then commenced proceedings for possession, relying on Ground 2 and on breaches of two clauses of her tenancy agreement. In essence the council was relying on a long list of complaints about nuisance and annoyance and harassment of Ms Samari's next door neighbours.
On 13 th October 2003 Judge Armitage QC conducted the trial of the claim for possession and also a complaint that by her conduct in April 2003 she had again broken...
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