Matter remitted as possession order based on historical position

Whether it is proportionate to make a possession order as a result of the antisocial behaviour of an individual with a disability must be determined on the position at the time  of the trial, and up-to-date evidence should be before the court. Section 15 of the Equality Act 2010 provides that a person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. In Nightingale and another v Bromford Housing Association Ltd [2024] EWHC 136 (KB); [2024] PLSCS 25, the High Court set aside a possession order because the determination of proportionality had not considered the factual position at the time of the trial. The Nightingales occupied 9 Harpers Brook, Towcester, Northamptonshire, under a fixed-term five-year tenancy granted by the respondent that began on 9 September 2013. From September 2013, allegations of antisocial behaviour against the household began. A significant number (but not all) of these allegations related to the behaviour of one of their five children (C). Such was the level of continued complaints of antisocial behaviour that in the summer/autumn of 2018 the respondent decided not to offer the Nightingales a new tenancy. On 4 April 2019, it then served a notice under section 21 of the Housing Act 1988. It transpired that C had been diagnosed with ADHD and the respondent could reasonably have been expected to know about this disability by 25 May 2018. The respondent accepted that ADHD was a disability under the Act and that C thus had a protected characteristic, but maintained that the decision to seek possession was nevertheless proportionate. With proceedings issued and the matter proceeding towards trial, allegations of antisocial behaviour continued. The housing officer prepared two statements, dated 16 October 2019 and 24 January 2020. The pandemic then struck, possession proceedings were stayed and the trial did not begin until 31 January 2022. The respondent contended that in the possession proceedings it no longer relied on allegations made against C and the county court judge wrongly concluded that service of the notice was not significantly influenced by any discrimination. Where there is antisocial behaviour which is wider than just that committed by the person with a disability, it does not follow that his antisocial behaviour played no significant role in the decision to evict. Despite this misstep, the judge had correctly considered C’s behaviour when deciding whether the decision to evict was proportionate but erred in finding that it was. The housing officer’s evidence had not been brought up to date and there was no evidence before the court of any allegations of antisocial behaviour committed after 28 December 2019. Indeed, a psychologist’s report obtained in October 2019 had indicated that C’s behaviour was on a path to improvement. The onus was on the respondent to show that eviction would be a proportionate means of achieving a legitimate aim, not for the tenants to demonstrate a change of circumstances since November 2019. There needed to be further consideration of the proportionate defence and the matter was remitted to the county court so that up-to-date evidence of the position at the trial (being the rehearing) could be considered. Elizabeth Haggerty is a barrister