B e f o r e :
LORD JUSTICE MUMMERY
LORD JUSTICE LAWRENCE COLLINS
and
MR JUSTICE MUNBY
____________________
Between:
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S
|
Appellant
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- and -
|
|
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JACQUELINE FLOYD
|
Respondent
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- and -
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THE EQUALITY AND HUMAN RIGHTS COMMISSION
|
Intervener
|
____________________
(Transcript of the Handed Down Judgment of
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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 : 26th February 2008
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
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?
MR JONES: Yes."
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
THE DISTRICT JUDGE: Right.
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
submit
that the District Judge was unreasonable in concluding that an adjournment to investigate
S's
mental capacity was not warranted.
ii) Next, they
submit
that the District Judge erred in law in concluding that there were not exceptional circumstances to adjourn the possession claim following North British Housing Association v Matthews [2004] EWCA Civ 1736, [2005] 1 WLR 3133.
iii) Finally, they
submit
that the District Judge erred in law in concluding that there was not an ability to resist the possession proceedings on the basis of disability discrimination that warranted an adjournment.
We
shall
deal with these in turn.
- First, however, we
should
mention two preliminary matters.
- Because of the general importance of the ground relating to the 1995 Act, the Equality and Human Rights Commission
sought
permission to intervene. We granted the Commission'
s
application but made clear that its
submissions
should
be confined to that ground of appeal and to general points of principle; the other issues argued before us were properly matters for
S
and Mrs
Floyd
alone.
- At the beginning of the hearing an application was made on behalf of
S
that we
should
hear the appeal in private because of what was
said
to be highly
sensitive
personal medical and other information about him. We refused that application. The principle that justice is administered in public that the Queen'
s
courts are open to all is fundamental. It is not lightly to be
set
aside. Except in very rare circumstances the Court of Appeal
sits
in public. There was nothing in the circumstances of this case which remotely justified our
sitting
in private. Indeed, the presence of the Commission was premised on the assertion that the case involved at least one important point of law of general public importance. But our decision would have been exactly the
same
even if there had been no particular public interest in the point in issue. The important public interest which is in play here is nothing to do with the point which interests the Commission; it is the public interest which demands that except in rare circumstances the court
sits
in public. Justice was done by the order we made, directing that the appellant was to be referred to as
S,
and by not publicly identifying his address.
Ground (i) the capacity issue
- Mr Luba
submitted
that the issue of
S's
capacity to conduct the litigation had been raised by an experienced mental health worker, that not least because of the gravity of the issues at
stake
(
S
was facing the loss of his home) the District Judge
should
have realised that the question of
S's
capacity properly required further investigation, and that in all the circumstances, and in the light of the overriding objective, an adjournment
should
have been allowed, albeit only for
such
time as it would have taken to obtain a proper assessment of
S's
capacity. Mr Luba goes
so
far as to assert that no reasonable judge in the circumstances would have failed to grant an adjournment where capacity was in issue.
- Judge
Simpkiss
did not agree. Nor do we. As Judge
Simpkiss
said,
and we respectfully agree,
"there was insufficient material before the District Judge to enable it to be
submitted
seriously
that
she
was wrong in exercising her discretion not to grant an adjournment on that ground. All that
she
had was a concern raised by Mr Leaver, but not any evidence or even circumstantial evidence that he lacked capacity
such
as would require him to be made a patient."
- It is clear from Masterman-Lister v Brutton & Co (No 1) [2002] EWCA Civ 1889, [2003] 1 WLR 1511, that the test of capacity is issue
specific.
It is not a question of whether the litigant has capacity to manage and administer his affairs generally, but whether he has capacity to conduct the particular legal proceedings he is concerned with. The relevant test was described by Chadwick LJ in Masterman-Lister as follows at paragraph 75:
"For the purposes of
CPR Pt 21 the test to be applied
is whether the party to legal proceedings is capable of understanding, with the assistance of
such
proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can
see
no reason why the law whether
substantive
or procedural
should
require the interposition of
a litigation friend".
- There was nothing before the District Judge to
suggest
that
S
did not or might not understand the comparatively
simple
and
straightforward
issues raised in the proceedings on which his input was likely to be necessary. Indeed, and as Mr David Giles, on behalf of Mrs
Floyd,
points out, Mr Leaver did not in fact make any
such
assertion to the District Judge.
- In truth, all the indications were the other way, namely that
S
had a very good understanding of the issues and that he was able to participate intelligently in the process. It was, after all,
S
himself who had drafted both the defence and the attachment, documents which would not have given any judge reason to question his capacity but which, on the contrary, and allowing that
some
of his alleged defences may have been bad in law,
seemingly
showed
an intelligent engagement with both the fundamentals and the details of the litigation. Moreover, as Mr Giles points out, there are passages in the transcript, which we need not
set
out,
showing
that
S
participated fully and intelligently in the hearing before the District Judge.
- In our judgment the District Judge was entitled to proceed as
she
did and without granting an adjournment on this ground.
- Before us, as before Judge
Simpkiss,
there was a report dated 22 June 2006 from a Cognitive Behavioural Psychotherapist
stating
that
S's
presentation can best be viewed as coming under the general heading of Obsessive Compulsive Personality Disorder. Three extracts from this report which is as revealing for what it does not
say
as for what it does
say
will
suffice:
"He presents with perfectionism and inflexibility that can interfere with task completion, due to overly
strict
standards.
He is preoccupied with details to the extent that the major point of the activity is lost".
"Many more hours are
spent
thinking or constructing written replies / correspondence that he has to deal with. Priorities are constantly juggled and his priorities may not be what others would consider appropriate. Our last few
sessions
have been taken up with attempting to prioritise completion and return of a form which would enable him to claim extra monies. He has returned to our
sessions
with many reasons why this has not been completed and it remains a task undone. He rarely 'allows' himself time off to relax".
"[
S]'s
current plight ie eviction proceedings, I consider to be part and parcel of his aforementioned presentation and personality and
should
be taken into account when dealing with his appeal".
That report, it will be noted, does not assert that
S
lacks capacity or that he lacked capacity at the time of the hearing before the District Judge.
- Before us, as before Judge
Simpkiss,
there was also a witness
statement
by Mr Leaver dated 26 June 2006 in which he described his involvement before the District Judge on 9 June 2006. Mr Leaver
says
that before meeting
S,
but having read the papers, he had reason to believe that
S
could well
suffer
from a mental health problem and that there could be an issue as to his legal capacity. Having met
S
at court, Mr Leaver felt that
S
lacked focus on what he (Mr Leaver) thought was relevant and that he appeared to be preoccupied with matters which he (Mr Leaver) could not
see
as relevant. "This led me to conclude that there was indeed an issue about his capacity." In a
second
statement
dated 28 July 2006 Mr Leaver expressed the following views:
"[
S]
has patently been unable to properly manage his financial affairs on account of his mental impairment. I have had
several
conversations with [
S]
and I have looked in detail at his Housing Benefit claim. [
S]
has a genuine inability to complete even
simple
and
straight
forward tasks."
- Again, that evidence is as revealing for what it does not
say
as for what it does
say.
There is nothing in it which in any way invalidates the District Judge'
s
decision not to grant an adjournment.
Strikingly
lacking in the evidence before Judge
Simpkiss
and before this court is anything establishing, even now, that
S
lacked capacity. In fact it is conceded that he did not.
So
it might be thought that this entire ground of appeal is rather unreal.
- Mr Luba invited us to offer guidance on the 'threshold' or 'litmus' test to be applied by judges faced with the kind of
situation
presented to the District Judge in this case. We decline to do
so.
The relevant principles are to be found comprehensively
set
out in Masterman-Lister and we
see
no advantage and
some
danger in any attempt to add
some
general gloss of the kind
suggested.
Ground (ii) the adjournment issue
- Notwithstanding
section
7(3) of the 1988 Act the District Judge had power to adjourn the proceedings but only in "exceptional circumstances": Matthews at paragraph 32.
- Mr Luba
says
that there were
such
circumstances here. He
says
that (i) the withheld rent was easily available the housing benefit was ready and waiting to be paid to the landlord, (ii) a disabling condition on
S's
part prevented him from giving the authority which would have enabled the benefit to be paid over, (iii) the District Judge had been informed of
S's
mental health problems and (iv)
S
had obtained the
services
of a
specialist
adviser who could overcome the problem and restore payment of rent. In the alternative he
submits
that the District Judge
should,
of her own motion, have adjourned
so
that the possibility of a defence under the 1995 Act could be explored.
- Mr Luba further
submits
that the District Judge erred in law when
she
proceeded on the basis that
she
had no discretion but to make the order.
- There are a number of difficulties with this.
- In the first place, and as Matthews makes clear, the non-receipt of housing benefit cannot of itself amount to an exceptional circumstance, even where there has been maladministration by the housing benefit authority. As Dyson LJ observed at paragraph 35:
"If the door were opened to applications for adjournments founded on housing benefit problems, there would be a real danger that the housing lists would become congested with contested applications for adjournments."
Secondly,
and more fundamentally, there is the
simple
fact that no application for an adjournment on these or any other analogous grounds was made to the District Judge. On the contrary, and as the Transcript
shows,
it was admitted in terms on
S's
behalf that there were arrears and that he had no defence to the claim under ground 8. Moreover, and as the transcript also
shows,
the only basis
suggested
for any adjournment was in relation to the question of
S's
capacity in the context of CPR 21. No adjournment was
sought
with a view to
S
being able to pay off the arrears. And there was no
suggestion
that the question of
S's
capacity was relevant to anything apart from CPR 21. In particular it was not
suggested
that the arrears had arisen because of
S's
incapacity or disability. Nor was there, either in the documents filed by
S
or in the
submissions
made by Mr Leaver,
so
much as a passing reference to the 1995 Act.
- Furthermore, as Mr Giles' careful analysis
shows,
there was nothing in the documents
S
had drafted by way of defence to
suggest
that his decision to hold back the rent was in any way referable to his disabilities. What "caused" him to
suspend
payment of rent was, in his own words, what he
saw
as the landlord'
s
illegitimate and excessive demand. And as those documents
show,
S's
reliance upon his "ill-health, disability and old age" was in the context of a plea that he would
suffer
exceptional hardship if a possession order was made, which is not at all the
same
point as that now being made by Mr Luba.
- In these circumstances we do not
see
how the District Judge can be criticised for not exercising a power which
she
was not invited to exercise and where there was nothing in the papers before her to
suggest
that it
should
be. No doubt any judge will be alert to
see
that injustice is not
suffered
by
someone
in
S's
position but there is a limit to what can
sensibly
or fairly be expected of a District Judge hearing a possession list. It is unrealistic to expect a District Judge (or any judge) to be alert to the existence of a theoretical defence which has not been even tentatively advanced by either the defendant or his legal representative and which is not even alluded to in any of the evidence or papers before the court.
- Nor in circumstances where no application had been made for an adjournment on this ground is the District Judge to be criticised for her precise choice of language. Given the concession that
S
had no defence and the absence of any application for an adjournment (other than that referable exclusively to CPR 21) it is hardly to be wondered at that the District Judge expressed herself as
she
did and
said
that
she
had to make the order.
- We
should
add that if the District Judge had been invited to adjourn on the grounds now being put forward
she
would, in our judgment, have been entitled to refuse the application.
Ground (iii) the Disability Discrimination Act v Housing Act issue
- Mr Luba'
s
third ground was that the judge wrongly concluded that "there was not an ability to resist the possession proceedings on the basis of disability discrimination that warranted an adjournment."
- This formulation is aimed at preserving for
S
at a remitted hearing the possibility of
setting
up the 1995 Act as a defence to a claim for possession based on the mandatory grounds of more than 8 weeks rent arrears under
section
7(3) and Ground 8 in
Schedule
2 to the 1988 Act.
- This ground of appeal presents
several
difficulties.
- The first difficulty, as we have already pointed out, is on the facts.
S
mentioned disability in his Defence and gave details in the
supplementary
page, the relevant parts of which we have already
set
out. In paragraph 3 he described how he had been caused to
suspend
payments of rent in 2003 by the landlord'
s
"illegitimate and excessive demand" for an increase in rent. He
submitted
in the final paragraph that the claim
should
be dismissed on a number of grounds, including "disability and health issues" which were also relevant to the
suspension
of any possession order to be made.
- At the hearing Mr Leaver referred to disability, but he did not invite the District Judge to adjourn the proceedings on the grounds that they constituted or involved unlawful disability discrimination which might provide
S
with a defence to the claim. Mr Leaver also told the District Judge that
S
admitted the arrears of rent and had no defence to the claim.
- In these circumstances, and for reasons we have already explained, we do not
see
how the District Judge can properly be criticised for taking the course
she
did.
- The
second
difficulty is on the law. It is not immediately obvious (a) how the 1995 Act could provide a basis for resisting a claim for possession on a
statutory
mandatory ground or (b) how a landlord would be unlawfully discriminating against a disabled tenant by taking
steps
to enforce his
statutory
right to a possession order for admitted non-payment of rent for 132 weeks. The 1995 Act was enacted to provide remedies for disabled people at the receiving end of unlawful discrimination. It was not aimed at protecting them from lawful litigation or at
supplying
them with a defence to breach of a civil law obligation. Like other anti-discrimination legislation, the 1995 Act created
statutory
causes of action for unlawful discrimination in many areas,
such
as employment, the provision of goods, facilities and
services
and the disposal or management of premises, but it did not create any
special
disability defence to the lawful claims of others,
such
as a landlord'
s
claim for possession of premises for arrears of rent. The legislation is not about disability per
se:
it is about unlawful acts of discrimination on a prohibited ground, ie., unjustified less favourable treatment for a reason which relates to the disabled person'
s
disability.
- Mr Luba relied on two
sections
in the 1995 Act and he cited a trio of cases.
Section
22(3) of the 1995 Act provides that:
"It is unlawful for a person managing any premises to discriminate against a disabled person occupying those premises
(c) by evicting the disabled person, or
subjecting
him to any other detriment."
- It is not unlawful to evict a disabled person from premises by lawful process. It could only become unlawful if it involved unjustified discrimination against the disabled person. The definition of discrimination in
section
24 in relation to premises is all important:
"(1) For the purposes of
section
22, a person ("A") discriminates against a disabled person if
(a) for a reason which relates to the disabled person'
s
disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot
show
that the treatment is justified.
(2) For the purposes of this
section,
treatment is justified only if
(a) in A'
s
opinion, one or more of the conditions mentioned in
subsection
(3) are
satisfied;
and
(b) it is reasonable, in all the circumstances of the case, for him to hold that opinion.
(3) The conditions are that
(a) in any case, the treatment is necessary in order not to endanger the health or
safety
of any person (which may include that of the disabled person)
"
- Mr Luba'
s
first case was Manchester City Council v Romano (Disability Rights Commission intervening) [2004] EWCA Civ 834, [2005] 1 WLR 2775. The claims for possession were made by a local authority against mentally ill
secure
tenants on the grounds of nuisance. Possession orders were made. Appeals against them were dismissed. According to the headnote the case decided that:
"
where a landlord decided to
serve
a notice
seeking
possession or to cause a claim for possession to be issued it was either evicting the tenant or
subjecting
her to "any other detriment" within the meaning of
section
22(3)(c) of the 1995 Act, and if the reason for
such
action related to the disability of the tenant it would be unlawful unless it could be justified pursuant to
section
24(2) of the 1995 Act
" [reference was made to paragraphs 50, 51, 60, 63, 75, 93, 104, 112 and 114 of the judgment of the court given by Brooke LJ]
- That was a case in which the court had a discretion to make a possession order if it was reasonable to do
so.
It was held that disability under the 1995 Act would be a relevant factor when the court was determining, pursuant to
section
84(2)(a) of the Housing Act 1985, whether it was reasonable to make an order for possession. This ruling was not
surprising.
The court noted that the county courts have had for many years to take the health of both landlord and tenant into consideration when determining whether it is reasonable to make an order for possession (
see
paragraph 68).
- Mr Luba relied on this court'
s
rejection of a
submission
(at paragraph 65) on behalf of the landlord that the
statutory
schemes
whereby a landlord recovered possession of his premises were unaffected by the 1995 Act. The court indicated that any argument based on the 1995 Act
should
be included as part of the defence rather than bringing a
separate
counterclaim and recognised that a landlord may
seek
possession on a mandatory ground that has been brought about by the tenant'
s
disability. As for the definition of discrimination in the 1995 Act, the court
set
out extensive quotations from Clark v. Novacold Ltd [1999] ICR 951. That was an employment case in which an attempt was made in this court to explain the difference between the concept of discrimination and the nature of the comparisons to be made in, on the one hand, the earlier
Sex
Discrimination and Race Relations Acts and, on the other hand, the 1995 Act.
- However, we note that, despite the detailed treatment of the facts and the legislation in the 123 paragraphs of the judgment of the court in Romano, there was very little discussion of what exactly were the acts of unlawful discrimination on the part of the landlord council that had to be justified by the landlord when
seeking
possession of the premises in question on the ground of breach of the tenancy agreement by the tenant (
see
paragraphs 51-55).
- The judgment in Romano expressed concern (paragraphs 67-68) at the evident difficulties in
sections
22 and 24 of the 1995 Act and
said
that, unless Parliament took rapid remedial action, the courts may be confronted with a deluge of cases in which disabled tenants are resisting possession proceedings by reliance on the 1995 Act. It may be observed, however, that the evident difficulties would only arise in cases in which the court was
satisfied
that there was in fact unlawful discrimination on the part of the landlord in evicting a disabled person or
subjecting
him to any other detriment. This would only occur where it was
shown
that the treatment of the disabled tenant was less favourable "for a reason which relates to the disabled person'
s
disability." The definition of discrimination in
section
24 refers to the reason for the potentially unlawful treatment. The reason is that of the discriminator, the "A" who is mentioned in
section
24(1).
- The definition of discrimination does not, we note, refer to the effects that the disability has on a disabled person'
s
ability to do things,
such
as to discharge his legal obligations as a tenant. It refers to "a reason" for treatment, which, in this context, would normally require the existence of
something
in and consciously or
subconsciously
affecting the mind of the discriminator "A."
See,
for example, Taylor v. OCS Group Ltd [2006] EWCA Civ 702, [2006] IRLR 613.
- Our attention was drawn to paragraph 14.21 (Eviction) of the Code of Practice issued by the Disability Rights Commission in 2006 which
says
in relation to
section
22(3)(c):
"This prohibition does not prevent the eviction of a disabled tenant where the law allows it, for example, where they are in arrears of rent or have breached other terms of the tenancy, and where the reason for this is not related to their disability (or, if it is, it can be justified under the Act)."
- This passage in the Code of Practice is relevant to the
second
case, Lewisham v. Malcolm. Permission to appeal was granted by the House of Lords. The appeal is fixed for hearing in the week commencing on 28 April next.
- In Malcolm the landlord relied on a contractual right to possession, contending that a
secure
tenant had lost his
secure
tenancy when he
sublet
the premises without the landlord'
s
written consent:
section
93 of the Housing Act 1985. There was no discretion to refuse a possession order.
- The case was cited for a number of general propositions: that the rights of a disabled tenant under the 1995 Act may prevail over the landlord'
s
legal right to possession; that the court
should
not lend its assistance to a landlord, whose treatment of his disabled tenant in
seeking
possession was unlawful under the 1995 Act, by making a possession order against the tenant; and that the court
should
dismiss the possession proceedings, if the reason for the landlord'
s
treatment of the tenant leading to the termination of a tenancy and the attempt to dispossess the tenant related to the tenant'
s
disability and was discriminatory.
- In Malcolm the tenant
suffered
from the disability of
schizophrenia.
This was not known to the landlord. It was held that the unlawful
subletting
leading to the loss of
security
was related to the tenant'
s
disability. The court held that the landlord was not entitled to a possession order against the tenant.
Section
22 of the 1995 Act made the possession proceedings unlawful.
- The third of the trio, Wright v. Croydon LBC [2007] All ER (D) 95 (Eady J), is a
striking
illustration of the reach of the 1995 Act, as interpreted and applied by these authorities in possession cases. In that case a possession order had been obtained by the local authority. The tenant later produced evidence that
she
was a diabetic dyslexic. The local authority originally decided not to enforce the possession order, but the rent arrears increased after the order was obtained. The local authority then decided to enforce it and obtained a warrant of execution. The tenant'
s
application for a
stay
of the warrant was refused by the District Judge. On the appeal to the Circuit Judge the appellant argued that it would be unlawful under the 1995 Act to evict her, as it was for a reason that related to her disability. The appeal was dismissed.
- On a
second
appeal to the High Court more medical evidence was produced making out a prima facie case that the tenant'
s
inability to pay her rent was linked to her inefficiency in handling her financial affairs, which in turn was linked to what was alleged to be her disability. The judge
said
that it might
seem
thin, and it might not ultimately
succeed,
but he thought it
should
be investigated.
- Malcolm was cited to Eady J in
support
of the
submission
that, in relation to the
seeking
of a warrant for possession, it was necessary to take into account the provisions and impact of the 1995 Act and that it would be unlawful to evict the tenant, as it would be discriminatory in the
sense
that her failure to pay rent was attributable to her disability. He made an interim injunction
suspending
the possession order and remitted the application to
stay
the warrant on the basis that prima facie the appellant was a disabled person for the purposes of the 1995 Act.
- On the basis of
sections
22 and 24 of the 1995 Act and of these authorities Mr Luba
submitted
that the District Judge and Judge
Simpkiss
proceeded on the erroneous premise that the 1995 Act could never provide a defence to a claim for possession based on the mandatory grounds. Malcolm, he
submitted,
is authority to the contrary. It was binding on them. It is binding on us. The appeal
should
therefore be allowed. Mr Luba contended that, had the matter been investigated in the opportunity that
should
have been provided by an adjournment,
S
would readily have established that he
suffers
from a disability for the purposes of the 1995 Act. The disability manifests itself in an inability to manage his affairs properly. His disability was connected to the rent account falling into arrears. By
serving
a notice of possession and bringing proceedings against
S
the landlady had taken a detrimental
step
for a reason related to
S's
disability. To use an expression found in Malcolm there was "an appropriate relationship" between the landlord'
s
reason for
starting
possession proceedings (non-payment of rent) and
S's
disability, which meant that there was unlawful discrimination to which the
statutory
justifications did not apply.
- We cannot accept Mr Luba'
s
submissions
on this ground of appeal. In our judgment, it was not arguable in the circumstances of this case that the 1995 Act provided a defence to the claim for possession. There was no error in the District Judge'
s
refusal of an adjournment. There was no error in the decision of Judge
Simpkiss
to dismiss
S's
appeal. He was right to distinguish Romano as a decision on the factors relevant to a discretionary jurisdiction to order possession.
- As for Malcolm, although neither judge had the benefit of its guidance, as it was decided
subsequent
to their decisions, a number of points may be made
showing
that it does not govern this case.
- First, the mandatory provisions of
section
7(3) of the 1988 Act, which give the tenant a
statutory
right to a possession order against the tenant who is more than 8 weeks in arrears with the rent, did not apply in Malcolm. The local authority relied on its contractual right to possession.
Secondly,
the court in Malcolm found that the
subletting
by the tenant, which led to the loss of
security,
and the reason for the landlord'
s
possession proceedings, related to the tenant'
s
disability. It was held that the landlord had to provide a justification to
satisfy
section
24 of the 1995 Act before the court would make a possession order.
- A finding that the reason for the proceedings related to the disability of the tenant is impossible in this case.
S
never
suggested
that his disability was a reason for the landlord'
s
possession proceedings or that his non-payment of the rent for 132 weeks between
September
2003 and March 2006 related to a disability from which he
suffered.
On his own account he
suspended
payment of rent because of the landlord'
s
attempts to increase the rent. (He resumed payment of rent after
service
of the Ground 8 notice on 6 March 2006.)
- There was no reason for the District Judge to treat this case other than as one in which the reason for the landlord'
s
claim for possession was the pleaded ground of non-payment of rent. No question of unlawful discrimination contrary to the 1995 Act could arise
so
as to require the landlady to justify her claim to a possession order or to disentitle her to
such
an order under the 1988 Act.
- We would therefore dismiss the appeal on this ground, as well as on the other two grounds. At the forthcoming hearing of Malcolm the House of Lords will
see
from the procedural history of this case and the arguments deployed the urgent need for a clarification of the
scope
of application of the 1995 Act in possession proceedings, which come before the county courts throughout the country every day. In this connection we
should
mention that one of the members of this court has dealt recently with an application for permission to appeal from a judgment of a Circuit Judge (Bernstein v Tate, December 21, 2007) in a case involving what would normally be a mandatory order for possession under
section
21 of the 1988 Act. The tenant claimed that non-payment of rent was due to various health problems including depression, as a result of which
she
had to
stop
working, and her incapacity and housing benefit was used in paying off her overdraft instead of the rent. Prior to Malcolm the District Judge made a possession order on the basis that the tenant'
s
disability had nothing to do with the landlord'
s
decision to
seek
possession. But the Circuit Judge granted a
stay,
set
aside the original possession order and re-listed the matter for evidence of the tenant'
s
disability and further
submissions.
This appears to have been on the basis that the tenant had a reasonable prospect of
success
in
showing
that
she
was disabled for the purposes of the 1995 Act, and that
she
was entitled to a
stay of the mandatory possession order.
Conclusion
- For these reasons the appeal will be dismissed.