The Supreme Court dismisses tenant’s appeal and gives guidance on the proper approach to a defence of discrimination to a possession claim in Akerman-Livingstone v Aster Communities Limited [2015] UKSC 15. Nicholas Grundy and Sara Beecham of Five Paper acted for the landlord with Daniel Stilitz QC.

16th March 2015

The Supreme Court held that proportionality under the Equality Act 2010 should not be approached in an identical manner as proportionality where a breach of Article 8 is raised. Although the Court agreed with the Landlord (Aster) that the twin aims of vindicating property rights and management of social housing stock were relevant to the balance of proportionality where the landlord is a social landlord, where the tenant was alleging disability discrimination those aims might not be sufficient (alone) to establish that the tenant’s eviction was lawful.
The Supreme Court’s reasoning was that the Equality Act grants additional rights to disabled people to reasonable adjustments to meet their particular needs and (unlike Article 8) applies to private as well as public landlords.
The Supreme Court agreed with the Landlord that summary disposal of an Equality Act defence is available, although Lord Neuberger and Lady Hale took the view this would be relatively rare.
The Supreme Court held that the courts below had erred in adopting the same high hurdle approach to proportionality under the Equality Act as under Article 8 but the appeal was, nonetheless, dismissed for reasons presented by Aster: Mr Akerman-Livingstone had refused an offer of permanent social housing in the same very street as the interim accommodation provided by Aster and although his disability may have been the cause of his refusal there was no evidence before the court that he had embarked on the therapy said to be required to allow him to accept the need for change; and the private freeholder had served Notice to Quit on Aster and was unable to proceed with a proposed sale. These subsequent events meant that if the case was remitted to the County Court a possession order would be inevitable.