Possession - disability discrimination


Manchester City Council v Romano, Samari [2004] EWCA Civ 834



The Court of Appeal held that the provisions of the Disability Discrimination Act 1995 apply to possession actions. The result of the ruling is that it will be unlawful for a court to make a possession order against a disabled secure or assured tenant where the behaviour complained of arises from a disability, unless the eviction can be justified under the terms of the Act. In so doing, the court upheld the decision in North Devon Homes v Brazier [2003] 35 HLR 59.



The court heard two appeals in possession actions brought against secure tenants of the local authority on the grounds of anti-social behaviour. In each case, the tenants adduced medical evidence of mental illness that was said to have caused their behaviour. The court rejected the authority's argument that the 1995 Act did not apply because Parliament could not have intended that the statutory schemes for security of tenure under the Housing Acts should be affected by the 1995 Act.



It is necessary to highlight a key difference between the 1995 Act and other anti-discrimination legislation, for example, the Sex Discrimination Act 1975 and the Race Relations Act 1976. Under the 1995 Act, to establish discrimination it is not necessary to show that the disabled person has been treated differently from a non-disabled comparator. Once it was established that the tenants' mental health problems caused the behaviour for which they were to be evicted, prima facie, the evictions were discriminatory unless they could be justified under the Act.



However, in both cases it was held that the evictions were justified under section 24(2) of the 1995 Act. For an eviction to be justified, it is necessary for the landlord to be of the opinion that it is 'necessary in order not to endanger the health or safety of any person' and it must be reasonable for the landlord to hold that opinion. The court emphasised that a landlord will not be acting reasonably if, once it is aware of the possibility of a defence based on the 1995 Act, it does not make inquiries.


Most significantly, however, the court adopted a low threshold for the test as to whether a person's health or safety is 'endangered' by the tenant's acts. It adopted the definition of health used by the World Health Organisation, namely, 'health is a state of complete physical, mental and social well-being and not merely the absence of disease and infirmity'. Applying that test to the facts of each case, the evictions were justified as there was ample evidence from neighbours of the effect that the tenants' behaviour had had on their well-being.


The decision in Romano means that, while the 1995 Act will continue to be of relevance in possession actions brought on the ground of anti-social behaviour, its impact is unlikely to be great provided that landlords obtain sufficient evidence of the effect on neighbours, for example, stress and sleeplessness. The court was nevertheless concerned that 'the courts may be confronted with a deluge of cases in which disabled tenants are resisting possession proceedings' by relying on the 1995 Act and urged Parliament to review the position.



By Andrew Dymond, barrister, Arden Chambers, London