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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Paragon Asra Housing Ltd v Neville [2018] EWCA Civ 1712 (26 July 2018) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1712.html Cite as: [2018] EWCA Civ 1712, [2018] HLR 39, [2019] PTSR 34, [2018] WLR(D) 480 |
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ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
Mr Recorder Williamson QC
Case No: B00KT962
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE ASPLIN
and
SIR COLIN RIMER
____________________
| PARAGON ASRA HOUSING LIMITED (formerly known as Paragon Community Housing Limited) |
Appellant |
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| - and - |
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| JAMES NEVILLE |
Respondent |
____________________
Edward J. Fitzpatrick and Justine Compton (instructed by GT Stewart Solicitors and Advocates) for the Respondent
Hearing date: 10 July 2018
____________________
Crown Copyright ©
Sir Colin Rimer :
Introduction
Relevant legislation
(a) The Housing Act 1988
'7. Orders for possession
(1) The court shall not make an order for possession of a dwelling-house let on an assured tenancy except on one or more of the grounds set out in Schedule 2 to this Act;
(4) If the court is satisfied that any of the grounds in Part II of Schedule 2 to this Act is established, then, subject to subsections (5A) and (6) below, the court may make an order for possession if it considers it reasonable to do so.
8. Notice of proceedings for possession
(1) The court shall not entertain proceedings for possession of a dwelling-house let on an assured tenancy unless
(a) the landlord has served on the tenant a notice in accordance with this section and the proceedings are begun within the time limits stated in the notice in accordance with subsections (3) to (4B) below;
(2) The court shall not make an order for possession on any of the grounds in Schedule 2 to this Act unless that ground and particulars of it are specified in the notice under this section; but the grounds specified in such a notice may be altered or added to with the leave of the court.
9. Extended discretion of court in possession claims.
...
(2) On the making of an order for possession of a dwelling-house let on an assured tenancy or at any time before the execution of such an order, the court, subject to subsection (6) below, may
(a) stay or suspend execution of the order, or
(b) postpone the date of possession,
for such period or periods as the court thinks just.
9A. Proceedings for possession on non-absolute grounds: anti-social behaviour
(1) This section applies if the court is considering under section 7(4) whether it is reasonable to make an order for possession on ground 14 set out in Part 2 of Schedule 2 (conduct of tenant or other person).
(2) The court must consider, in particular
(a) the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought;
(b) any continuing effect the nuisance or annoyance is likely to have on such persons;
(c) the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.'
(b) Equality Act 2010
'4. The protected characteristics
The following characteristics are protected characteristics
disability;
6. Disability
(1) A person (P) has a disability if
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.
(2) A reference to a disabled person is a reference to a person who has a disability.
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.
35. Management
(1) A person (A) who manages premises must not discriminate against a person (B) who occupies the premises
(b) by evicting B (or taking any steps for the purpose of securing B's eviction);
The facts
' from emotionally unstable personality disorder, agoraphobia and mental and behavioural disorders due to use of opioids/dependence syndrome which amounts to an impairment and which has had (and continues to have) a substantial and long term adverse effect on his ability to carry out normal day to day activities. The Defendant is therefore disabled as defined by s.6 of the [Equality Act] 2010
Accordingly, throughout the period during which the incidents are alleged to have taken place, the Defendant had (and continues to have) a protected characteristic within the meaning of s. 4 of the EA 2010.'
'By section 15 EA 2010 a person indirectly discriminates against a disabled person if he treats that person unfavourably because of something arising in consequence of that person's disability and cannot show that the treatment is a proportionate means of achieving a legitimate aim. The Defendant accordingly contends the following:
The Claimant's decision to evict him and/or the service of the notice seeking possession and/or the use of possession proceedings amounts to unfavourable treatment;
The trigger for the decision to evict/issuing the notice/issuing proceedings is the allegations of breach of tenancy and anti-social behaviour by the Defendant.
It is clear from the allegations that the behaviour complained of is linked to and arises in consequence of the Defendant's mental health problems, which according to Dr Fuller causes the Defendant to have an unstable mood, feelings of paranoia when around people (preferring to stay indoors away from "external pressure"), feelings of panic and shaking and anxiety (see letter dated 29 April 2013). It is evident that his interaction and reaction to his neighbours and the perceived threat from them does impact on his ability to cope and triggers particular behaviour.'
Mr Neville's disability
The possession order made by District Judge Smart
The decision of District Judge King
'At the end of the day the Equality Act duty is absolutely a continuing duty. All of these issues were undoubtedly considered because they were all pleaded in the defence, they were all responded to in the reply and District Judge Smart clearly went through the matters with the parties and had everybody in to look through the order before it was made.
The reality is I am obliged to consider whether or not there have been breaches. If I find them I then have a discretion as to what I decide to do. Part of those circumstances will obviously be the effect on the defendant of any decision that I may or may not make. The reality is that whilst you say to me, Miss Compton, a decision to evict would be unfavourable, it is going to be unfavourable to anybody. I cannot see how that is discriminatory in relation to this particular gentleman, because at the end of the day it is going to be unfavourable to absolutely anybody.
I am struggling, Miss Compton, with the idea that I must do effectively a re-looking at the same points that have been looked at, unless there is any change in relation to the circumstances. I am struggling to see how the court can come to any different decision, unless you can show me a significant change in circumstances. Mr Kohli is correct that to do so would otherwise be effectively reopening the inquiry that was made prior to the possession order being granted and effectively would therefore be trying to set aside/vary/the appeal word [sic] to the possession order by the back door. If you do not like the basis on which it was made back in April 2014 [sic: should be '2016'], then you should have (a) tried or thought to possibly appeal it or (b) sought to set it aside, both of which would have been difficult given that it was of course dealt with by consent, was it not?
As part of the overall circumstances, I will certainly be considering the position of this defendant if I come to that, i.e., if I first find that there have been breaches. The reality is in relation to a new individual inquiry in relation to the specifics of the sections of the Equality Act, unless you can satisfy me that there has been a significant change in his personal position, vis-ΰ-vis his disability, then it would, as Mr Kohli says, amount to potentially an abuse of process. That is not somewhere this court is going to.'
'64. Miss Williams, who lives next door, was quite clearly utterly traumatised by the whole situation. whilst Ms Compton sought to have the court put this down due to her nervousness at giving evidence, given that she had never been in court before, it was quite clearly something way beyond that. Ms Quelch gave evidence of a substantial deterioration in her depression. Both these ladies have quite clearly been subjected to nuisance and harassment in their homes which is intolerable. On the other hand, I have a defendant who has mental health issues. He has been diagnosed with unstable personality disorder and it is clear and accepted that his mental health impacts on his behaviour.
68. The court's finding in relation to its decision and whether this warrant should be suspended is that this is a Lambeth v. Howard case. The reality is that these residents, Miss Williams and Ms Quelch, have been so affected by the defendant's behaviour that, no matter what happens, there is no way to repair the situation. Ms Quelch was, frankly, incredibly fair to the defendant, but she has had a significant worsening of her depression and needs medication. Miss Williams is a 60-year-old woman who is, frankly, terrified in her own home. If I am wrong and this is not a Lambeth v. Howard case then the balancing act that the court must carry out, the Massey case makes clear, requires the court to find cogent evidence, persuasive evidence, looking forward, that the defendant's behaviour will not re-occur, that the defendant has mended his ways, and that the burden is on the defendant to provide this.
69. Dr Stamps' report is very clear. In order for the defendant to make progress, he must (1) stop abusing drugs and (2) then engage with treatment for his personality disorder. Yes, there is evidence from Ms Dyer, who appears to be assisting the defendant with issues with opiate substitutes, but the last drug test, in relation to opiates or opiate substitutes only, was in, possibly, April, possibly May. Other than that, all I have is self-reports. There is clear evidence that the defendant took ketamine in April and, on the balance of probabilities, the court does not find the defendant's evidence that he is drug-free persuasive. The court did not find him a credible witness. He has been given every opportunity to mend his ways, but he prefers to blame things on others, including his lawyers during cross-examination, in relation to evidence that, in his view, had not been put forward.
70. In terms of any evidence of his engagement with therapy, Dr Stamps' report says that the defendant would need to deal with a STEPPS programme, with which there has clearly been no engagement. The defendant's evidence on this was that he has tried to get referrals, but the referral needs to be from a GP and he cannot get a GP appointment.
71. Even if I were to have accepted the defendant's evidence that he has been drug-free since April, on the balance of probabilities, the court cannot accept that the defendant could not get a GP appointment between April and now. Whilst I take judicial notice that sometimes it can be a little bit difficult to get past GP receptionists, the reality is that six months and an inability to get any form of GP appointment is simply incredible.
72. The conclusion of the court, on the balance of probabilities, is that the evidence such as there is, even if it were accepted, would not be sufficient to amount to cogent evidence sufficient for the court to say that the defendant has mended his ways and that there will be no recurrence in the future. Accordingly, it is the court's decision that this application by the defendant is dismissed. The warrant may be referred back to the bailiff for a new appointment and a new notice to be given to the defendant.'
'38. The picture illustrates the hard fact that the harassment of neighbours, especially although not only those with children, may reach a point where what has been done cannot be undone. So here it may be that the appellant in 1997 to 1998 had demonstrated a capacity to behave himself more or less properly when the stakes were high enough for him. It may even be that he would probably continue to do so if allowed to return to his flat. But although, as the judgment points out, the harassment in past years had been intermittent and not continuous, what the appellant cannot do, and it is entirely his own fault that he cannot, is dispel the fear and the tension which his return, on the judge's findings, will bring to Miss Gabriel. She holds down a job and is often out at work, and her daughter, now 13 years old, needs all the concentration that she can get on her schooling and all the protection that she can get from fear and stress.
39. If from these facts one turns to the Convention questions, just as if one asks whether an outright possession order is reasonable rather than a suspended one, there is only one answer. It is the one that the judge reached: an outright possession order against the appellant was necessary to protect Miss Gabriel and her daughter from the continuing consequences of the appellant's obsessive harassment of them in the past. It would be necessary even if he were to return next door and commit no acts of harassment in the future. The shadow of the past is too heavy upon the present. Such an order is within the law. It meets a pressing social need. It is proportionate to that need in the straightforward sense that nothing less will do and that it is an acceptable means of achieving a legitimate aim. The judge so held below, and I agree with him.'
The appeal before Mr Recorder Williamson QC
'6. Those provisions were considered recently by the Supreme Court in the case of Akerman-Livingston v. Aster Communities Limited [2015] UKSC 15, [2015] AC 1399. The leading speech was given by Lady Hale, and paragraphs 15 to 19 inclusive of that speech are to be treated as incorporated in this judgment. It seems to me clear from those paragraphs, where Lady Hale repeatedly uses the word "eviction" and/or "evict", that s.35 is focused upon the question of whether there is discrimination at the point of eviction. As far as I understand it, eviction is not a term defined either in the Act or in the speech of Lady Hale, but it is, it seems to me, apparent that she is directing herself to the situation where the end of the road has been reached and the disabled tenant is being made to leave his property. When that position arises, it is apparent from paragraph 38 of the judgment that the court has itself to undertake a proportionality exercise and that that requires a number of matters to be taken into account. Indeed, in the same case, in the speech of Lord Wilson, he explains the structured step by step approach which has to be taken in order to consider whether eviction should or should not proceed in these particular circumstances. Going back to the opinion of Lady Hale, she makes clear at paragraph 25 that the Equality Act duties are additional rights and essentially rights which benefit, so far as material, disabled people.
7. Against that background, it seems to me clear that, when the court made a suspended possession order in April 2016 it had to take into account the provisions of the Equality Act and it recited that it had done so, and there is no complaint about that particular order, and those seem to me to be matters which fall within the phrase, "Taking steps for the purpose of securing B's eviction" in s.35(1)(b). However, it seems to me that when a landlord comes to enforce a suspended possession order and seeks actually to evict a tenant, then s.35(1)(b) applies fully and without restriction and the tenant has the benefit of it and the court has to proceed in accordance with the approach which has been laid down by the Supreme Court in the case of Akerman-Livingston v. Aster Communities Limited. There is not a short-cut, as it seems to me, which is compatible with the opinions in that case. Furthermore, it seems to me, as was argued or sought to be argued on behalf of the tenant in this case, that when a landlord takes a step to evict, quite separate from the question of whether the order should be enforced, that step itself is subject to s.35(1)b) duties and potential defences. It seems to me, for understandable reasons, that the District Judge in this case was unwilling to entertain those arguments and fettered herself by concluding that, unless there had been a significant change since the April order, it was not open to the tenant to raise the s. 35 defences. For the reasons I have indicated, I think that is wrong.'
The appeal to this court
'38. The starting point is that article 8 confers a right that respect be had for a person's home, such that interference with it by a public authority must be both lawful, and a proportionate means of achieving a legitimate end. The court's task is to subject the process of dispossession by the public authority to a proportionality review. That is a process which may typically involve a number of stages, beginning in the present case with a notice to quit, followed by the issue of possession proceedings, the obtaining of judgment after a hearing, and the enforcement of an order for possession by the obtaining and execution of a writ of possession.
39. In the overwhelming majority of cases the occupant's article 8 rights will be appropriately and sufficiently respected by the provision at the occupant's request of a proportionality review during the possession proceedings themselves, and usually at the hearing of them. That is because, under English procedure, it is those proceedings, and in particular the hearing of them, which are designed finally to determine (subject only to any appeal) the lawfulness or otherwise of the owner's claim for possession.
40. The court hearing the possession proceedings is not obliged to conduct a proportionality review of its own motion. It must do so if, but only if, that review is requested by the occupant, by the raising of an article 8 defence: see the Pinnock case, at para 61. Thus, in the absence of special circumstances, the owner will only be in a position to seek a writ of possession after the occupant's article 8 rights have been exhausted, either because they have not been prayed in aid during the possession proceedings, or because they have been raised as a defence but rejected. Generally, an attempt to relitigate the article 8 issue at the enforcement stage, or to litigate it for the first time when it could and should have been raised as a defence in the possession proceedings, would have been an abuse of process by the occupant.
41. But there will be exceptional cases, and the present is a very unusual but powerful example, where the raising of article 8 rights at the enforcement state will not be an abuse. The obvious example is where there is a fundamental change in the occupant's personal circumstances after the making of the possession order but before its enforcement. The example canvassed during the hearing of this appeal was that of the diagnosis of an incurable illness for the first time after the making of the possession order, making it disproportionate for the public authority to evict the occupant before he or she could be allowed to die peacefully at home.
42. The present case is a (probably unique) example where it would not be an abuse of process to pray in aid article 8 rights at the enforcement stage. The claimant vigorously pursued her article 8 rights during the possession proceedings but, as the law then stood, and Collins J was bound to conclude, they afforded her no defence. Yet it is now recognised, before the end of the process designed to lead to her eviction, that the claimant has a right to a proportionality review of the enforced loss of her home on the application of the defendant public authority. There is, quite simply, no occasion other than the present proceedings, in which that review can be conducted in this case.'
Discussion and conclusion
'14. It held that the approach to proportionality was the same under the Equality Act 2010 as it was under article 8 (para 27) and the weight to be given to the interests of a social landlord was no different: para 29. For a tenant to succeed in a disability discrimination case "he will have to show some considerable hardship which he cannot fairly be asked to bear"; para 37. There was no difference between a social landlord acting on the instructions of a local housing authority and the local housing authority itself: para 46'
' the proportionality of making an order at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority's ownership rights. It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing. Furthermore, in many cases (such as this appeal) other cogent reasons, such as the need to remove a source of nuisance to neighbours, may support the proportionality of dispossessing the occupiers.'
'31. No landlord is allowed to evict a disabled tenant because of something arising in consequence of the disability, unless he can show eviction to be a proportionate means of achieving a legitimate aim. He is thus obliged to be more considerate towards a disabled tenant than he is towards a non-disabled one. The structured approach to proportionality asks whether there is any lesser measure which might achieve the landlord's aims. It also requires a balance to be struck between the seriousness of the impact on the tenant and the importance of the landlord's aims. People with disabilities are "entitled to have due allowance made for the consequences of their disability": Lewisham London Borough Council v. Malcolm [2008] AC 1399, para 61. It certainly cannot be taken for granted that the first of the twin aims will almost invariably trump that right. Even where social housing is involved, the general considerations involved in the second of the twin aims may on occasions have to give way to the equality rights of the occupier and in particular to the equality rights of a particular disabled person. The impact of being required to move from this particular place on this particular disabled person may be such that it is not outweighed by the benefits to the local authority or social landlord of being able to regain possession
32. When a disability discrimination defence is raised, the question is not simply whether the social landlord is entitled to recover the property in order to fulfil its or the local authority's public housing functions, but also whether the landlord or the local authority has done all that can reasonably be expected of it to accommodate the consequences of the disabled person's disability and whether, at the end of the day, the "twin aims" are sufficient to outweigh the effect on the disabled person. These are questions which a court is well equipped to address.
34. I am prepared to accept that, in possession cases brought by social landlords against tenants who otherwise have no right to remain in the property, it can generally be taken for granted that the landlord is acting in pursuance of the twin aims; and further that those twin aims are entitled to weigh heavily in a proportionality exercise. However, as already explained, that is by itself not enough to counter a discrimination defence. Once facts are established that could give rise to a discrimination claim, the burden shifts to the landlord to prove otherwise. This will depend on the particular type of discrimination alleged. If it is a claim of disability discrimination under section 15, then the landlord would have to show that there was no less drastic means of solving the problem and that the effect on the occupier was outweighed by the advantages. The express burden of proof provisions in the Equality Act 2010 cannot simply be ignored because there are some elements in the proportionality exercise which can be taken for granted.
36. There may also be cases where a discrimination case is so lacking in substance that summary disposal is merited. The test is whether the claim "is genuinely disputed on grounds that appear to be substantial". I agree with Lord Neuberger of Abbotsbury PSC (para 59) that the case could be summarily disposed of if the landlord could show (iii) that bringing and enforcing the claim were plainly a proportionate means of achieving a legitimate aim.
38. It is, however, clear that in possession actions generally, and in discrimination cases in particular, the role of the court is not akin to judicial review. It has to undertake the proportionality exercise itself. The second problem is that [the circuit judge] regarded the proportionality exercise under section 15 as the same as the proportionality exercise under article 8. For the reasons given earlier, it cannot be exactly the same. While some things can be taken for granted, and some cases may be so clear that summary disposal is warranted, the issues are not all the same.'
'64. Where [a defence is raised under section 35(1)(b) to a possession action], the court should adopt a four-stage structured approach to the claimant's attempt to show, pursuant to section 15(1)(b) of the 2010 Act, that the steps which it is taking for the purpose of securing the defendant's eviction are a proportionate means of achieving a legitimate aim.'
Disposition
Lady Justice Asplin :
Lord Justice Simon :