Can unlawful discrimination be used as an argument to defend possession proceedings?

What is unlawful discrimination?
The Equality Act 2010 prohibits discrimination arising from disability. Such discrimination occurs where one person discriminates against a disabled person because of “something arising in consequence” of the disability and it cannot be shown that the discrimination is a proportionate means of achieving a legitimate aim.

The Nightingale case
The Nightingales were tenants of Bromford Housing Association (“Bromford”). In 2019, following complaints of anti-social behaviour, Bromford issued a possession claim. The Nightingales defended those proceedings on the basis that their young son was the cause of the anti-social behaviour, but that such behaviour arose from his disabilities, so that eviction would amount to unlawful discrimination.

The trial judge dismissed the Nightingales’ argument and made an order for possession.

The Nightingales appealed. They argued that:

• after the proceedings had been issued, but before the trial, the son in question had been prescribed medication which appeared to give rise to a significant improvement in his anti-social behaviour;
• as a matter of fact, this reduced the impact on the neighbours; and
• there was no evidence of anti-social behaviour during the period between the commencement of the claim and the trial.

The appeal judge held that the High Court had not addressed the critical evidence about the son’s medication and the impact on his anti-social behaviour, and that such consideration was necessary to determine whether an eviction was a proportionate remedy. There will be a consequential re-trial.

How does this apply to property guardianship?
In the last few months, we have received enquiries about unlawful discrimination issues from property guardianship provider clients. The Nightingale is an important reminder about the duty not to discriminate, including within the housing sector. Although this case involves a housing association, the same protection is given to property guardians. However, in our view, as the possession route we take against property guardians is under statute law, we would argue any defence of unlawful discrimination does not have any merit, because the court does not have the same discretion to consider such a defence in the same way it does as for ASTs. Like many defences raised at the eleventh hour in court though, it potentially could cause delay in securing a possession order.

There are also other scenarios within the property guardianship model where it is critical to consider strategies to mitigate the risk of an unlawful discrimination claim, including the property guardian application process, as well as your legal obligations as an employer, which our Employment team advises on.

If you do encounter issues with a property guardian where there are concerns about their general behaviour, or anti-social behaviour, it is important to seek legal advice to ensure you have a full understanding of the circumstances and risk, before taking any action. Please get in touch Amy Castleman.