Evidence for possession order overwhelming

A counterclaim brought by a publicly-funded tenant with a disability was wholly without merit and an outright possession order was made. In Royal Borough of Kingston Upon Thames v Sarah Khan and Rashid Khan [2023] EW Misc C Mr Justice Luba KC made an order for possession of 14c Acacia Grove, New Malden Surrey (the flat), after dismissing the first defendant’s counterclaim which alleged direct and indirect discrimination. The flat was a one-bedroom ground floor property. In April 2010 it had been let by the council to the first defendant under an agreement which stated the first defendant was to be the sole resident. At that time her adult son (the son), resided at the former family home 76 Chaucer Road, Ashford. In October 2019, the council received information that the flat was standing empty, investigated and concluded that the first defendant in fact resided at 76 Chaucer Road. As the flat was not the first defendant’s “only or principal home” the council concluded that she was not a secure tenant and sought to determine her occupancy by serving a notice to quit. By the time possession proceedings commenced, the son had moved in to the flat and so he was made the second defendant (but played no part in the proceedings). Despite overwhelming evidence to the contrary, the first defendant maintained that she lived at the flat with her son who she said was her carer. The court rejected her evidence. She also counterclaimed relying on the Equality Act 2010 and asserted that the council had, in its capacity as a public authority, discriminated against her (directly and indirectly) on the basis of her disability. Although satisfied that the first defendant had a disability, the medical evidence did not support the contention that the behaviour about which the council complained was a manifestation of that disability. The allegations of direct discrimination should not have been brought. The suggestion that there was indirect discrimination contrary to s19 of the Act also failed. The council did not discriminate against her by applying a provision, criterion or practice (PCP) which was discriminatory in relation to her protected characteristics. The PCP was not pleaded as it should have been but the allegation failed in any event. Even if the PCP existed, a class of comparators who did not suffer from the characteristic had not been clearly identified, it was not clear how the PCP would have put the first defendant at a disadvantage and even if it did the council would have amply established that eviction was a proportionate means of achieving a legitimate aim. An outright possession order and associated money judgments were made. The first defendant suggested that an order for costs should not be made against the son but as it was the fact of the son’s continued occupation which had prevented the much earlier recovery of the flat the court considered that a costs order against both defendants (jointly and severally) was appropriate. The court recorded “a considerable degree of surprise” that the first defendant had the benefit of public funding both to defend the claim and bring her counterclaim. Elizabeth Haggerty is a barrister