Supreme Court considers tests for justification under s15 Equality Act 2010 and Article 8 ECHR in a housing eviction case against a disabled tenant


By Catherine Casserley

The Supreme Court handed down its decision yesterday in Akerman-Livingstone v. Aster Communities Ltd (formerly Flourish Homes Ltd) [2015] UKSC 15 in which it considered the test of justification for discrimination under section 15 of the Equality Act 2010 (the EqA) as compared with justification for Article 8 of the Convention.

The appellant, who has chronic and severe mental ill health, and who met the definition of disability for the purposes of section 6 of the EqA, had been placed in housing association accommodation after being homeless in 2010. The local authority had a duty to provide him with secure accommodation under the Housing Act 1996 but that duty would cease if he refused an offer of suitable accommodation elsewhere. The appellant had refused numerous attempts to find him permanent accommodation and so he was notified in April 2011 that the duty had been discharged and sought possession of his housing association flat.

The appellant’s defence was that the possession order would amount to disability discrimination and breach his rights under the ECHR, art 8, which was supported by medical evidence of his vulnerability and need for intensive therapy. The Bristol County Court held that neither defence was arguable; that the same proportionality assessment applied to the defence under s.15 of the EqA as applied to Article 8 and that the defence could be summarily disposed of.

In dismissing the appeal, the Supreme Court stated that a complaint of disability discrimination under the Equality Act 2010, s 15, in response to an eviction raises two key questions: (i) whether the eviction is ‘because of something arising in consequence of’ the complainant’s disability; and (ii) whether the landlord can show that the eviction is a proportionate means of achieving a legitimate aim.

When a defence under Art 8 is raised and the court is considering whether an eviction is proportionate, it can assume that an order would meet the legitimate aims of vindicating a local authority’s property rights and of enabling the authority to comply with its statutory duties in the allocation and management of the housing stock available to it.

However, the Supreme Court agreed that the substantive right to equal treatment protected by the EqA is different from and extra to the Article 8 right: it applies to private as well as public landlords; it prohibits discriminatory treatment, for example, by evicting a black person where a white person would not be evicted; and it grants additional rights to disabled people to have reasonable adjustments to meet their particular needs.  This is consistent with the obligations which the United Kingdom has now undertaken under the United Nations Convention on the Rights of Persons with Disabilities. This defines discrimination on the basis of disability to include the “denial of reasonable accommodation” (article 2). State Parties are required, not only to prohibit all discrimination on the basis of disability, but also “In order to promote equality and eliminate discrimination, [to] take all appropriate steps to ensure that reasonable accommodation is provided” (article 5(2) and (3)).  “Reasonable accommodation” means adjustment(s) to meet the particular needs of a disabled person.

It cannot be taken for granted that the aim of vindicating the landlord’s property rights will almost invariably make an eviction proportionate: the protection afforded by s 35(1)(b) EA is plainly stronger than that given by Article 8 [31, 55-58]. The burden will be on the landlord to show that there were no less drastic means available and that the effect on the occupier was outweighed by the advantages [34]. Summary disposal may still be appropriate, but not in cases where a claim is genuinely disputed on grounds that appear to be substantial, where disclosure or expert evidence might be required [36, 60].

In the appellant’s case, the judge misdirected himself and adopted the wrong approach. He should have undertaken the proportionality assessment in relation to each defence, and he wrongly regarded this exercise as the same for the discrimination defence as for the Art 8 defence.

The Court concluded, however, that there was no point in allowing the appeal and remitting it to the county court. The notice to quit that has since been served by the freeholder of the building meant that the respondent was in breach of its legal obligations and left the freeholder unable to proceed with the proposed sale.

The case will affect not only housing legislation, and in particular evictions involving disabled people, but it emphasises again, the different approach to be taken to disability discrimination provisions.