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Paragon Asra Housing Ltd v Neville [2018] EWCA Civ 1712 (CA (Civ Div))

The Court of Appeal considers proportionality in enforcing orders for possession against disabled tenants.

Section 35 of the Equality Act 2010 prohibits landlords from discriminating against someone who has a protected characteristic, such as disability, by evicting them or taking steps towards evicting them. One type of discrimination is "discrimination arising from disability". This is where a disabled person is treated unfavourably not because of a disability itself, but because of something that arises as a consequence of their disability. That "something" might, in housing cases, be rent arrears or (as was the case here) anti-social behaviour. It will not amount to discrimination, however, if the landlord's action is "justified", that is to say "a proportionate means of achieving a legitimate aim". This consideration of justification in anti-social behaviour cases often involves balancing the discriminatory effect eviction has on the disabled person with the needs of the landlord and the neighbours affected by the tenant's conduct.

In this case Mr Neville was the tenant of social housing run by a housing association landlord. He had mental health problems that the landlord accepted amounted to a disability under the Equality Act 2010. He committed numerous acts of anti-social behaviour which the housing association also accepted arose from his disabling mental health problems. The question for the court was whether making an order for possession against him (i.e. evicting him) was justified. When the matter first came before the court the district judge held that it was justified to make an order for possession which was suspended provided Mr Neville committed no further acts of anti-social behaviour.

Shortly after this order was made, there were numerous further allegations of anti-social behaviour against Mr Neville. The housing association issued a warrant for possession and the tenant sought to suspend the warrant (i.e. stopping the eviction from proceeding). The district judge held that it was unnecessary to consider afresh whether the eviction would discriminate against Mr Neville and refused to suspend the warrant. Mr Neville appealed and a Recorder allowed his appeal and suspended the warrant. The housing authority appealed to the Court of Appeal.

The question before the Court of Appeal was whether a court was required to consider again whether the eviction was justified when it came to enforcing the order. The Court of Appeal held that it did not. When making the possession order the court undertakes the relevant justification assessment and decides that it will be proportionate to order possession. The court does not (unless there is a change of circumstances), have to reconsider the same question all over again when it comes to enforcing the order.

This case will probably make it easier for landlords to evict disabled tenants who, by reason of their disabilities, are not complying with the terms of their tenancies. The facts of the case show how the poor mental health of tenants gives rise to complex issues. On one hand it was clear that Mr Neville's conduct was "intolerable" for his neighbours who had vulnerabilities of their own. On the other hand the eviction of a tenant for anti-social behaviour will almost certainly mean that they will be considered to have made themselves intentionally homeless and will find it impossible to secure social housing for the foreseeable future. If they have mental health problems this may not bode well for their future management.

As we pointed out in the article about the Social Housing Green Paper the government is considering the question of anti-social behaviour. However, the Paper appears to be simplistically framing the issue in terms of "tackling" anti-social behaviour. There is certainly a place for taking robust steps to protect neighbourhoods from the behaviour of problem tenants, and we hear from people whose mental health has been adversely affected by living close to anti-social neighbours. However, we would urge the government not to ignore the need to support people whose unmet needs can sometimes find expression in anti-social behaviour. This is a complex issue and we would caution against the simple narrative.

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