Reconsideration of a Disability Discrimination defence on enforcement of a suspended possession order

21 August 2018

David Brounger considers the case of Paragon Asra Housing Limited v. Neville [2018] EWCA 1712 in which the Court of Appeal decided that where a Court had concluded that it was reasonable to make a suspended possession order in the face of a disability discrimination defence, there was no requirement for a reconsideration of the discrimination issue when it came to the enforcement of the order.

Housing practitioners may well have raised an eyebrow at the outcome of the first appeal in this case in which Mr Recorder Williamson QC decided that, notwithstanding an earlier determination that it was reasonable to make a suspended possession order despite the fact that the Defendant suffered from an accepted disability, it was necessary for the Court to reconsider that point on the Defendant’s application to suspend the warrant.    This decision has now been overturned by the Court of Appeal.

The facts

Mr Neville was an assured tenant in a property owned by Paragon.  He committed numerous acts of nuisance and harassment leading to Paragon issuing possession proceedings under Grounds 12 and 14 of Schedule 2 to the Housing Act 1988.  Mr Neville admitted the breaches but claimed that they resulted from a disability, namely a personality disorder.  He asserted that Paragon had breached sections 15 and 35 of the Equality Act 2010 by making the decision to evict him.

The Claim was listed for trial but in the event no trial took place, a suspended possession order having been proposed.  Mr Neville provided a schedule of Admissions and DJ Smart recorded that:

  • Grounds 12 and 14 were made out;
  • Paragon accepted that Mr Neville had a protected characteristic for the purposes of the Equality Act
  • It was reasonable to make a possession order but reasonable and appropriate to suspend the order.

It was agreed that DJ Smart was satisfied that the proceedings and the SPO did not amount to disability discrimination.

The suspension of the order was on terms that Mr Neville committed no further breaches and abided by the terms of the tenancy.

Perhaps rather unsurprisingly Mr Neville breached the order almost immediately, leading to Paragon obtaining a warrant for possession. Mr Neville applied for suspension of the warrant.

At the suspension hearing before DJ King, Counsel for Mr Neville argued that the District Judge had to consider the issue of whether Paragon’s decision to seek to enforce the SPO amounted to disability discrimination under sections 15 and 35 of the Equality Act.  The District Judge concluded that there was no requirement to re-consider points that had already been considered by DJ Smart, effectively re-opening an enquiry that had already been made, unless there had been a material change in circumstances.  Counsel for Mr Neville accepted that there had been no such change.

DJ King refused to suspend the warrant.  Mr Neville appealed the decision.

On appeal Mr Recorder Williamson QC held that when a landlord comes to enforce an SPO and seeks to evict the tenant then section 35 of the Equality Act applies fully and has to be approached in the manner laid down by the Supreme Court in Akerman-Livingston v Aster Communities Limited [2015] UKSC 15 [2015] AC 1399.  In other words the exercise in relation to disability discrimination at the time the SPO was made had to be undertaken again.

Paragon appealed the decision of Mr Recorder Williamson QC

Held: Allowing the appeal, that where a Court had held that the making of a suspended order was not discriminatory there was nothing in the Judgement in the Akerman-Livingston case that required the Court the reconsider the same point when it came to enforce the suspended order unless there had been a material change in circumstances.  T0 impose such a requirement would be ‘a recipe for applications of a vexation nature’.

This decision will come as no great surprise to most housing lawyers.  It would seem a strange hurdle to impose on Landlords that they (and the Court) would have to address four-stage proportionality inquiry as described by Lady Hale DPSC in Akerman-Livingston  both at the time a suspended order was made and again, on the same facts, when it came to enforcing the order.  If the facts had changed then one can readily see why the exercise would need to repeated, but not otherwise.