Housing – Possession – Disability discrimination – Respondent vulnerable person being housed by appellant provider of social housing – Appellant applying for possession on grounds of nuisance and annoyance – County court dismissing application – Appellant appealing – Whether judge incorrectly introducing concept of “relevant breach” of tenancy agreement and wrongly failing to find certain breaches of tenancy agreement – Whether, notwithstanding respondent’s mental disorder, possession order was reasonable, legitimate and proportionate – Appeal allowed in part.
The appellant provided social housing. The respondent tenant was a 33-year-old man who occupied a ground floor flat in a detached block of four flats in Bovey Tracey, Devon, with two pet dogs. He was a vulnerable person. Some of the neighbouring tenants were also vulnerable persons. The appellant had agreed that an area of communal garden would be fenced off for the respondent’s dogs. Although other tenants appeared to have agreed to the proposed fencing off, they felt they had not been given a choice and the proposed area needed to be adjusted to allow them to get to their bins. After the respondent moved in, problems arose between him and other tenants, who complained about loud music. The respondent was upset the fenced off area of the garden had been changed. He installed CCTV, fixing it to the walls of the flat, and altered the fixtures and fittings in the kitchen. Other tenants complained about his aggressive behaviour.
The appellant brought proceedings for possession under the Housing Act 1988 pursuant to Schedule 2. The two main grounds were: (1) ground 12, a breach of a term of the tenancy other than one relating to the payment of rent; and (2) ground 14, causing nuisance and annoyance. The county court dismissed the claim. The appellant appealed, arguing the judge incorrectly introduced the concept of a “relevant breach” of the tenancy agreement and wrongly failed to find certain breaches of the tenancy agreement proved and, notwithstanding the respondent’s paranoid personality disorder, it remained reasonable, legitimate and proportionate to order possession, so that the appeal ought to be allowed and possession ordered. The respondent argued any order for possession would amount to disability discrimination and that the appeal should be dismissed.
Housing – Possession – Disability discrimination – Respondent vulnerable person being housed by appellant provider of social housing – Appellant applying for possession on grounds of nuisance and annoyance – County court dismissing application – Appellant appealing – Whether judge incorrectly introducing concept of “relevant breach” of tenancy agreement and wrongly failing to find certain breaches of tenancy agreement – Whether, notwithstanding respondent’s mental disorder, possession order was reasonable, legitimate and proportionate – Appeal allowed in part.
The appellant provided social housing. The respondent tenant was a 33-year-old man who occupied a ground floor flat in a detached block of four flats in Bovey Tracey, Devon, with two pet dogs. He was a vulnerable person. Some of the neighbouring tenants were also vulnerable persons. The appellant had agreed that an area of communal garden would be fenced off for the respondent’s dogs. Although other tenants appeared to have agreed to the proposed fencing off, they felt they had not been given a choice and the proposed area needed to be adjusted to allow them to get to their bins. After the respondent moved in, problems arose between him and other tenants, who complained about loud music. The respondent was upset the fenced off area of the garden had been changed. He installed CCTV, fixing it to the walls of the flat, and altered the fixtures and fittings in the kitchen. Other tenants complained about his aggressive behaviour.
The appellant brought proceedings for possession under the Housing Act 1988 pursuant to Schedule 2. The two main grounds were: (1) ground 12, a breach of a term of the tenancy other than one relating to the payment of rent; and (2) ground 14, causing nuisance and annoyance. The county court dismissed the claim. The appellant appealed, arguing the judge incorrectly introduced the concept of a “relevant breach” of the tenancy agreement and wrongly failed to find certain breaches of the tenancy agreement proved and, notwithstanding the respondent’s paranoid personality disorder, it remained reasonable, legitimate and proportionate to order possession, so that the appeal ought to be allowed and possession ordered. The respondent argued any order for possession would amount to disability discrimination and that the appeal should be dismissed.
Held: The appeal was allowed in part.
(1) Where a claim for possession was brought on discretionary grounds under the Housing Act 1988 the court had to address the questions whether: (i) the landlord had made out a ground for possession (section 7(1) of the 1988 Act); (ii) it was reasonable in all the circumstances, including the effect of nuisance on neighbours, to make a possession order (sections 7(4) and 9A); (iii) the possession order should be suspended (section 9(2)); and (iv) if so, what terms of suspension should be considered. The legislature gave a wide overriding discretion to the county court judge to consider whether it was reasonable to make an order which it was most undesirable to interfere with. The question for the appellate court was whether the judge had so plainly gone wrong in law that the court should interfere, presumably by way of order a new trial: Lincoln City Council v Bird [2015] EWHC 843 (QB); [2015] 2 P&CR 12 and City West Housing Trust v Massey [2016] EWCA Civ 704; [2016] PLSCS 203 considered.
(2) Where issues of disability discrimination under the Equality Act 2010 were raised, the landlord had to show that there was no less drastic means of solving the problem than ordering possession. In the present case, the court had to consider whether the respondent could show that he had a mental disability; whether he could show that there was a sufficient causal link between the mental disability and the conduct on which the decision to evict was based; and, if so, whether the appellant could show that evicting the respondent was a proportionate means of achieving a legitimate aim and that the effect of eviction on the respondent would be outweighed by the benefits to the appellant: Aster Communities Ltd v Akerman-Livingstone [2015] UKSC 15; [2015] EGLR 39 considered.
(3) In this case, the judge found some breaches of the tenancy agreement but, on the evidence, he should have found further breaches and made further findings of fact and assessed the respondent’s aggression, threats and intimidation against the tenancy agreement to decide whether there had been a breach of the tenancy agreement or a further ground for possession under ground 14. The respondent was unable to provide any reasonable explanation of what was meant by the concept of “relevant breach” and it was not a basis on which the judge should have rejected the appellant’s claimed ground for possession. The judge was wrong not to test his conclusion about the respondent presenting as “very aggressive, threatening and intimidating” against the relevant provisions of the tenancy agreement and ground 14 of Schedule 2. However, the court was unable to determine whether the judge’s findings about the respondent’s behaviour would have led to a finding of breach of the tenancy agreement or that ground 14 of schedule 2 was made out.
(4) In circumstances where the judge had erred by not finding further breaches of the tenancy agreement, it was difficult to place weight on his conclusion that it would not have been reasonable or proportionate to make a possession order. The judge did not have the opportunity to reflect on other relevant breaches of the tenancy agreement and their effect on other tenants, because he had failed to find those breaches. The court could not make a finding that possession ought to be ordered. The assessment of whether it was reasonable to order possession was very fact sensitive, and there were important factors militating against the grant of possession, including the respondent’s mental health.
(5) The appeal could not be dismissed on the basis that any judge hearing the matter again at first instance would not make an order for possession, suspended or otherwise. The appellant might be able to show that it was reasonable to order possession which would not amount to disability discrimination. There was a real possibility that a judge would conclude that an order for possession might be suspended on terms such as engagement with mental health services. The appeal would be allowed against the order dismissing the claim for possession and the action remitted to be retried.
Nicholas Grundy QC (instructed by Capsticks LLP) appeared for the appellant; Russell James (instructed by Cartridges Law, of Exeter) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Teign Housing v Lane
