Two Bites of the Cherry? An Equality Act 2010 Proportionality Inquiry at the Enforcement Stage as well?

Where a possession order (outright or suspended) is made against an assured tenant, despite a tenant’s section 35 of the Equality Act 2010 defence, because a section 15(1)(b) proportionality inquiry shows it is not discrimination, must the Court undertake a second proportionality inquiry when considering a tenant’s application to suspend a subsequent warrant of possession, even where no intervening material change of circumstances is alleged by the tenant? That is the question that the Court of Appeal addressed in the recent case of Paragon Asra Housing Limited (formerly known as Paragon Community Housing Limited) v James Neville [2018] EWCA Civ 1712 and answered in the negative. 

Proceedings to Possession Order

In Paragon v Neville, a community benefit society landlord, providing social housing, issued possession proceedings[1], seeking a possession order against a tenant, Mr Neville, in respect to his dwelling-house, on the basis that he was in breach of his tenancy and committed anti-social behaviour (Housing Act 1988, Part II of Schedule 2, Grounds 12 and 14 respectively). 

The tenant defended the claim. While he admitted certain anti-social behaviour and that the same satisfied Grounds 12 and 14, he contended that this misconduct arose on account of his disability, a protected characteristic under the Equality Act 2010, section 4 (supplemented by section 6)[2]. Submitting that at all material times he had suffered:

'…from emotionally unstable personality disorder, agoraphobia and mental and behavioural disorders due to use of opioids/dependence syndrome which amounts to an impairment and which has had (and continues to have) a substantial and long term adverse effect on his ability to carry out normal day to day activities.’

A psychiatric report diagnosed the tenant as suffering from a mental impairment in the nature of an Equality Act disability, namely an emotionally unstable personality disorder exacerbated by substance abuse. The forensic psychiatrist recommended total abstinence from illicit drugs so as to control the tenant’s anti-social behaviour.

The tenant’s position was that the landlord had breached the Equality Act 2010, section 15 (supplemented by section 35)[3], by indirectly discriminating against him as a disabled person, by treating him unfavourably because of something arising in consequence of his disability when such treatment cannot be shown to be a proportionate means of achieving a legitimate aim. Namely, the landlord’s decision to evict him and/or serve proceedings and/or use possession proceedings, amounted to unfavourable treatment, because they were based on his behaviour which arose as a consequence of his mental health problems. Such, the tenant contended, was unlawful discrimination. Further, it would be unreasonable to order him to give up possession.

In reply, the landlord admitted that the tenant’s disability was a protected characteristic pursuant to the Equality Act 2010, but denied unlawful disability discrimination, referring to the serious nature of his conduct, as well as the Court’s need, under section 9A of the Housing Act 1988, to have regard to the effect of his conduct on others. If the tenant was able to show that his anti-social behaviour had been caused by a disability, the landlord asserted that the possession proceedings were a proportionate means of achieving a legitimate aim and so involved no discrimination, under section 15 (1) (b) of the Equality Act 2010. 

At a hearing, DJ Smart found Grounds 12 and 14 were satisfied on the basis of the tenant’s admissions, recorded the landlord’s acceptance that the tenant had a protected characteristic for the purposes of Equality Act 2010, and recited the Court’s finding that ‘it is in all the circumstances reasonable to make a possession order but reasonable and appropriate to suspend such order on the terms set out … at paragraph 2', before ordering possession within 4 weeks, suspended on terms that the tenant commit no further, material breaches of the tenancy[4]. This was on the basis that DJ Smart was satisfied that the proceedings, and the suspended possession order, did not amount to disability discrimination by the landlord. That was because, whilst the landlord’s decision involved unfavourable treatment of the tenant because of his conduct arising in consequence of his disability, the landlord had shown the treatment to be a proportionate means of achieving a legitimate aim - section 15(1)(b). In other words, DJ Smart undertook a proportionality test, to discern whether the landlord’s actions, though unfavourable, were lawful because they came within section 15(1)(b), and in particular, its proportionality test - the nature of which was explained in Akerman-Livingston v. Aster Communities Limited [2015] AC 1399 (‘Aster Communities’) by Lady Hale in her leading speech, at paragraph 28, as a fourfold inquiry: (i) is the objective sufficiently important to justify limiting a fundamental right, (ii) is the measure rationally connected to the objective, (iii) are the means chosen no more than is necessary to accomplish the objective, and (iv) is the impact of the rights infringement disproportionate to the likely benefit of the impugned measure?

Application to Suspend Warrant for Possession

Almost immediately after the suspended possession order was made, the tenant was alleged to have committed further breaches. Accordingly, the landlord applied for a warrant for possession. The Court duly issued the warrant and the tenant applied to suspend it. 

Dismissing the Application to Suspend the Warrant for Possession

The tenant's application came before DJ King, where the tenant argued, seemingly as a preliminary point, that, whilst not seeking, on a ground of alleged discrimination, to upset the making of the suspended possession order, he was seeking on grounds of discrimination, to challenge the landlord’s decision to enforce it in reliance on the alleged breaches. The landlord responded, arguing that, unless there had been a material change of circumstances since the making of the suspended possession order, there was no issue for the court to re-consider under section 15 of the Equality Act 2010, and that on the facts, the tenant was not asserting that there had been any such material change of circumstances. 

Adjudicating on this preliminary point, DJ King was persuaded by the landlord’s arguments, stating that:

‘I am struggling, [counsel for the tenant], with the idea that I must do effectively a re-looking at the same points that have been looked at, unless there is any change in relation to the circumstances. I am struggling to see how the court can come to any different decision, unless you can show me a significant change in circumstances. [Counsel for the landlord] is correct that to do so would otherwise be effectively reopening the inquiry that was made prior to the possession order being granted and effectively would therefore be trying to set aside/vary/the appeal word [sic] to the possession order by the back door. If you do not like the basis on which it was made back in April 2014 [sic: should be '2016'], then you should have (a) tried or thought to possibly appeal it or (b) sought to set it aside, both of which would have been difficult given that it was of course dealt with by consent, was it not?

…The reality is in relation to a new individual inquiry in relation to the specifics of the sections of the Equality Act, unless you can satisfy me that there has been a significant change in his personal position, vis-à-vis his disability, then it would…amount to potentially an abuse of process. That is not somewhere this court is going to.'

Finding the alleged breaches proved, DJ King concluded that she should exercise the discretion conferred by section 9 of the Housing Act 1988 by dismissing the tenant’s application to suspend the warrant. 

First Appeal 

On appeal before Mr Recorder Williamson QC, the tenant’s appeal was allowed. In reaching his decision, the Recorder referred to sections 15 and 35 of the Equality Act 2010, and then placed heavy reliance on his understanding of Lady Hale’s speech in Aster Communities, in particular, on what he discerned to be the importance of her repeated use of the words "eviction" and/or "evict". From that the Recorder said it was clear that section 35 focused upon the question of whether there is discrimination, as at the moment of eviction. Relying on this discernment and construction of section 35, the Recorder found that the law requires the Court to undertake a proportionality inquiry/exercise at the point when the tenant ‘is made to leave his property.’ He held that:

‘…when a landlord comes to enforce a suspended possession order and seeks actually to evict a tenant, then s.35(1)(b) applies fully and without restriction and the tenant has the benefit of it and the court has to proceed in accordance with the approach which has been laid down by the Supreme Court in the case of Akerman-Livingston v. Aster Communities Limited… that when a landlord takes a step to evict, quite separate from the question of whether the order should be enforced, that step itself is subject to s.35(1)b)  duties and potential defences…’

This was, in the Recorder’s view, irrespective of whether there had been any significant change in the tenant’s circumstances since the possession order had been made. In essence therefore, as later summarized by the Court of Appeal, the Recorder:

‘…was of the opinion that Aster Communities showed that it was the eviction itself that was the central act in the drama of possession proceedings against a disabled tenant, and that even though the court may earlier have held that the making of a suspended order for possession was not discriminatory, it nevertheless had, of its own motion, to reconsider the same question at the point when such an order came to be enforced.’

Adopting this approach, the Recorder suspended the warrant (pending a further hearing on the application to suspend).

Second Appeal

On the landlord’s appeal against the Recorder’s decision, the Court of Appeal (Simon LJ, Asplin LJ and Sir Colin Rimer) unanimously allowed the appeal, holding that the Recorder had misunderstood Aster Communities and had consequently adopted the wrong approach. 

The Court of Appeal found that a tenant has no right to require the court to assess for a second time, at the enforcement stage, whether it was proportionate to grant possession, absent any change in circumstances which might cause a legitimate question to be raised as to whether it still remained proportionate to allow possession. On the facts of Paragon v Neville, the tenant had not even put forward that there had been a material change of circumstances, and so, when the matter came back before the Court on the application to suspend the warrant for possession, the Court had had no basis for instigating a second proportionality inquiry/exercise. Sir Colin Rimer, with whom Simon LJ and Asplin LJ agreed, said after stating the Recorder's approach, at paragraphs 51 and 52:

‘In my judgment, there is nothing in the judgments in Aster Communities supporting such an approach and I respectfully regard the Recorder's different view as wrong. The logic of his view is that in a case in which, following a section 15(1)(b) proportionality analysis, a court makes a lawful outright 28-day possession order with which the tenant fails to comply, so that the landlord has then to issue a warrant for possession, the tenant is at that point entitled to require the court to embark afresh upon the same proportionality exercise that it had made when ordering possession… The suggestion is, in my judgment, mistaken and I would reject it. When making the possession order, the court has undertaken the relevant proportionality inquiry. It has satisfied itself that possession must be given and that, if it is not, the order can lawfully be enforced. The order is binding between the parties. The tenant can have no right, absent any relevant change of circumstances, to require the court to re-consider the same question upon the landlord's claim to enforce the order. The recognition of such a right would be a recipe for repeated applications of a vexatious nature. There is no such right.

As I have acknowledged…there will be cases where between the making of the possession order (whether suspended or outright) and its enforcement there has been a material change of circumstances such that a legitimate question will arise as to whether it is still proportionate to enforce the possession order. In such a case, the court will have to re-consider the section 15(1)(b) proportionality inquiry. That, however, is not this case. The Recorder was wrong to hold that [the landlord’s] claim to enforce the order must be the subject of such an inquiry.’

Consequentially, the Recorder’s decision was set aside, and the ruling of DJ King restored; the tenant’s application to suspend the warrant was dismissed.

Conclusion 

The Court of Appeal in Paragon v Neville has clarified the law that, where a possession order (outright or suspended) is made against an assured tenant, despite the tenant running a section 35 of the Equality Act defence (because a proportionality inquiry under section 15(1)(b) showed that the unfavourable treatment was not discriminatory), the Court will not undertake a second proportionality inquiry when considering the merits of a tenant’s application to suspend a warrant of possession, unless there has been an intervening material change of circumstances (between the possession order being made and the application to suspend enforcement). 

Consequently, landlords can take some comfort that, once a tenant has run a section 35 Equality Act 2010 defence at the possession hearing and that has failed, the Court will not countenance a re-run at the enforcement stage, save where the tenant’s circumstances have materially changed. Without a material change, tenants are not entitled to two bites of the proverbial cherry.