Equality Act defences to possession claims – High Court ruling on application of section 15 test

Summary

The High Court has allowed an appeal against a possession order where the county court judge was held not to have properly applied the relevant test for disability discrimination. The case is a useful reminder to landlords of the correct application of the test for disability discrimination in the Equality Act, and how the court should approach the issue of proportionality in anti-social behaviour possession claims where there has been a fall-off in incidents before trial.

The case

In Nightingale v Bromford HA [2024] EWHC 136 (KB), Bromford issued possession proceedings against the Nightingales following the expiry of a section 21 notice served due to anti-social behaviour perpetrated mainly by the household’s teenage children. One of the teenage sons, Calum, had ADHD.

Section 15 Equality Act 2010 provides that a person discriminates against a disabled person if they treat that person unfavourably because of something arising in consequence of their disability, and cannot show that the treatment is a proportionate means of obtaining a legitimate aim. The Nightingales defended the possession proceedings on the grounds that Bromford’s decision to seek possession was discriminatory as it was unfavourable treatment arising in consequence of Calum’s disability.

After proceedings had been issued, but before trial, Calum was prescribed medication which led to a significant improvement in his behaviour. The court was not provided with any evidence of anti-social behaviour for a period of two years before trial.

At the county court trial, the judge made a possession order. Their approach to the test at section 15 was to ask ‘but for Calum, would the notice have been served?’ and concluded that whilst his behaviour was a factor, Bromford’s decision was based on a wider analysis of the family’s behaviour in general. The Nightingales appealed.

At the appeal, the High Court held that the county court judge had misinterpreted the section 15 test. The relevant question was not whether the notice would have been served but for Calum, but rather whether Calum’s behaviour — arising in consequence of his ADHD — played a significant role in the decision to serve the notice. It did — and therefore Bromford were required to demonstrate that the action taken was a proportionate means of obtaining a legitimate aim.

The High Court further held that the county court judge had not properly considered the evidence about the reduction in anti-social behaviour in the two years before trial and therefore whether eviction was proportionate by the time of trial.

The Nightingales’ appeal was allowed and the matter was remitted back to the county court for trial.

Lessons for social landlords

Where any causal link is established between a disabled person who a landlord is seeking to evict and their disability, the landlord must demonstrate that the action taken is a proportionate means of obtaining a legitimate aim, (or that they did not know and could not reasonably have been expected to know that person had the disability).

The issue of proportionality is a relevant consideration for the purposes of disability discrimination, (and other purposes), at each stage of possession proceedings — from the decision to serve a notice through to the decision to execute a bailiff’s warrant. It is important to keep the action being taken under review, especially as new evidence is received, and if there are material changes ‘on the ground’ such as there being no further incidents for an extended period.