Akerman-Livingstone v Aster Communities Ltd [2015] UKSC 15

A disabled tenant resisted possession proceedings brought by a social landlord, raising a disability discrimination defence under the Equality Act 2010. The Supreme Court held that such defences require a different, more rigorous approach than Article 8 defences, but dismissed his appeal on the facts.

Facts

The appellant, a 47-year-old man suffering from Prolonged Duress Stress Disorder/Complex Post Traumatic Stress Disorder arising from childhood abuse, was accepted by Mendip District Council as owed the homelessness duty under section 193(2) of the Housing Act 1996. In August 2010, pursuant to an agreement between the council and the housing association Flourish (later Aster Communities), he was granted a weekly periodic tenancy of a ground-floor flat in Glastonbury.

Numerous attempts to place him in permanent accommodation failed, the appellant declining or withdrawing bids on properties for reasons linked to his mental condition (including associations with the location of his childhood abuse). In March 2011 the council made a final offer of property in Street, which he refused. The council concluded its duty was discharged, and Aster served notice to quit and brought possession proceedings.

A subsequent homelessness application was initially rejected but accepted on review. In September 2012, Aster offered a starter tenancy of a property in the same Glastonbury street as his current flat. The appellant declined. The council again concluded its duty was discharged. Possession proceedings were reinstated.

At a preliminary hearing, His Honour Judge Denyer QC summarily ordered possession, applying the principles in Pinnock and Powell to both the Article 8 and Equality Act defences. Cranston J and the Court of Appeal upheld the decision.

Issues

The principal issue was whether courts should adopt the same summary approach to a disability discrimination defence under section 15 and section 35(1)(b) of the Equality Act 2010 as they take to an Article 8 defence following Manchester City Council v Pinnock [2011] 2 AC 104 and Hounslow LBC v Powell [2011] 2 AC 186.

Arguments

The appellant argued that disability discrimination defences require a distinct, structured proportionality assessment, with the burden of proof on the landlord under section 136 of the 2010 Act, and cannot ordinarily be summarily dismissed. The respondent contended that the same approach applied as for Article 8 defences: the social landlord’s twin aims (vindicating property rights and managing housing stock) would almost always justify possession, and summary disposal was appropriate.

Judgment

Distinction between Article 8 and Equality Act defences

The Supreme Court unanimously held that the Court of Appeal and lower courts erred in equating the two defences. Lady Hale identified key differences: (i) the Equality Act applies to private as well as public landlords; (ii) the Equality Act creates a substantive right to equal treatment additional to Article 8; (iii) disabled persons may require differential, not identical, treatment, consistent with the UN Convention on the Rights of Persons with Disabilities; (iv) section 136 expressly shifts the burden of proof to the landlord once a prima facie case is established; and (v) the structured four-stage proportionality test (per Bank Mellat (No 2) and Elias) applies to section 15(1)(b), unlike Article 8 cases.

Lady Hale held that while the landlord’s twin aims may be a ‘given’ which can weigh heavily, this alone does not defeat a discrimination defence. The court must consider whether there were less drastic means, and whether the impact on the disabled person is outweighed by the landlord’s interests.

Summary disposal

Summary disposal under CPR 55.8(2) remains possible where the defence is not ‘genuinely disputed on grounds that appear to be substantial’. Lord Neuberger identified three situations where summary judgment may be appropriate: (i) no real prospect of proving disability; (ii) plain that possession is not sought because of something arising from the disability; or (iii) the claim plainly represents a proportionate means of achieving a legitimate aim. Such cases will be rare.

Application to the facts

Judge Denyer erred by treating the section 15 defence as akin to judicial review and applying the Article 8 framework. However, the Supreme Court (Lord Wilson giving the lead reasoning on the facts) held that supervening events made the outcome of any remitted trial inevitable. The freeholder had served notice to quit on Aster requiring vacant possession; Mendip had ceased requesting accommodation in the building; and the freeholder needed possession to sell. The appellant’s earlier refusal of suitable accommodation in the same street demonstrated he could not realistically accept any alternative. A full trial would inevitably conclude that eviction struck a fair balance and was proportionate.

Implications

The decision establishes that disability discrimination defences to possession claims require materially different treatment from Article 8 defences. The structured four-stage proportionality test applies, with the burden firmly on the landlord under section 136 of the 2010 Act once a prima facie case is established. The twin aims identified in Pinnock cannot be assumed to trump equality rights, and courts must consider whether less drastic measures exist and undertake a genuine balancing exercise.

The judgment matters to social landlords, private landlords, local housing authorities and disabled occupiers. Social landlords cannot rely on summary disposal as readily where a disability discrimination defence is raised; they must consider whether reasonable accommodation has been provided and whether eviction is genuinely proportionate. Summary disposal remains available but only where the defence is clearly insubstantial.

The decision is qualified by the recognition that, in practice, many section 35(1)(b) defences will involve disputed facts requiring full trial with disclosure and cross-examination. The decision also reflects the United Kingdom’s obligations under the UN Convention on the Rights of Persons with Disabilities, particularly the requirement to provide reasonable accommodation. The case underscores that equality rights are not merely procedural overlays on existing property law, but substantive rights capable of altering otherwise lawful outcomes.

Verdict: Appeal dismissed. Although the lower courts erred in equating the approach to disability discrimination defences with that for Article 8 defences, the appeal was dismissed because supervening events meant that a full trial on remission would inevitably result in a possession order being made against the appellant.

Source: Akerman-Livingstone v Aster Communities Ltd [2015] UKSC 15