Last year Arthur Moore and I ran a seminar in Chancery Lane on the (then) vexed question of to what extent Article 8 and Article 1 of the First Protocol of the European Convention on Human Rights impacted upon private landlords’ possession claims.
Though there was an increasing incidence at that time of private landlords facing article 8 defences to otherwise mandatory possession claims, such a practice, anecdotally at least, appears to have lessened, albeit the question remains at least arguable. That does not mean however that private landlords can simply ensure they have properly served a valid (section 21) notice on their assured shorthold tenant and complied with all necessary formalities to guarantee success at any ensuing possession claim. There may be – albeit in a limited number of cases – issues of discrimination to face.
The Equality Act 2010 (“the Act”) came into force on 1 October 2010, though not in its entirety, having received royal assent just four weeks before the 2010 general election. It brought together over 116 pieces of legislation – including the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Acts of 1995 and 2005 – into a single Act and was amongst other matters, in the words of the Act’s Introduction, intended to "reform and harmonise equality law".
The Act seeks to outlaw unlawful discrimination against a person or group of people because of age, disability, gender re-assignment, marriage and civil partnerships, pregnancy and maternity, race, religion or belief, sex and sexual orientation. These are known as the "Protected Characteristics" and are set out at section 4 of the Act. They were all covered to varying degrees by previous legislation.
In terms of "disability":
(a) This – described in the Act as a "physical or mental impairment" – is defined at section 6 and Schedule 1 to the Act, as well as by regulation and guidance. It follows that save in certain defined cases, such as cancer and HIV, there will need to be expert evidence that the defendant or an occupier of their household has a "disability" for the purposes of the Act.
(b) If there is such a "disability" then the Act defines unlawful discrimination in three ways – direct (section 13 – less favourable treatment because of the protected characteristic), indirect (section 19 – a provision, criterion or practice is applied which is discriminatory in relation to a relevant protected characteristic) and, most relevantly here, disability discrimination (section 15). "Harassment" and "victimisation" are also provided for in Part 2 of the Act at sections 26 and 27 respectively
(c) If such discrimination is proved then section 35 of the Act provides that:
(1) A person (A) who manages premises must not discriminate against a person (B) who occupies the premises—
(a) in the way in which A allows B, or by not allowing B, to make use of a benefit or facility;
(b) by evicting B (or taking steps for the purpose of securing B's eviction);
(c) by subjecting B to any other detriment.
It is clear therefore that section 15 is the important provision and this says:
15 (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.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
Section 15 could fit the Malcolm v Lewisham LBC1 factual matrix potentially (though no comparators are required under the Act) and more obviously could arise where the acts of anti-social behaviour complained of which have precipitated the action, or the incidence of rent arrears which has caused the claim to be issued, can be shown to result from, in whole or part, or at least be exacerbated by the defendant’s (or a member of his/her household’s) disability2.
The reason why the section 21 notice has been served and acted upon may therefore become relevant. However, even if it can be shown that a protected characteristic exists (age and marriage & civil partnership are not covered by section 35), is known (or ought to be known) to the landlord/agent and the acts complained of are “in consequence” of that characteristic then the question still remains as to whether the notice, possession claim and/or a continuing of the said claim is a "proportionate means of achieving a legitimate aim" – i.e. objective justification.
This maybe where the landlord can relax a little because this wording mirrors the correct approach to assessing Article 8(2) of the European Convention on Human Rights3 and as is well known from cases such as Manchester City Council v Pinnock and Thurrock Borough Council v West, it is going to take a "highly exceptional" case to fall within such a definition. Be advised though that there are arguments to suggest that the phrase should be given a wider, less exclusive and more fact sensitive definition4 as more frequently occurs in, say, employment and immigration cases.
That is not to encourage discrimination however, or undermine the importance and relevance of the Act (and there are many articles in relation to the private rented sector on letting policies and the need or otherwise to make "reasonable adjustments”) but rather to illustrate that a good responsible landlord or her/his agent will not be barred from seeking possession of any property if they act responsibly.
If they do not then though they may still ultimately overcome any defence under the Act – and the fact of their, by definition, being in the private sector will assist greatly on the section 15(1)(b) issue – significant costs may be expended in proving that no discrimination exists.
1 Where the House of Lords allowed the local authority’s appeal in a mandatory sub-letting case by, much to the chagrin of many employment practitioners, holding that the approach to comparators in Clark v TDG Ltd (t/a Novacold Ltd) was wrong (i.e. there was no point comparing with tenants who had not sub-let, the proper comparator being whether action would have been taken against a tenant without a mental illness who had, like Mr Malcolm, sub-let) – the 2010 Act has effectively over-turned this decision.
2 It will be noted that in Barnsley MDC v Norton it was the daughter who had cerebral palsy.
3 Lord Hope said in Hounslow LBC v Powell at  for example that ‘the question will then be whether making an order for the occupier’s eviction is a proportionate means of achieving a legitimate aim’.
4 It is acknowledged that Southend-on-Sea Borough Council v Armour is one such case but that is subject to a forthcoming judgment from the Court of Appeal.
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