Possession proceedings: disability


Antisocial behaviour by tenants - possession proceedings by council - whether tenants disabled - whether council justified in seeking possession - relationship between Housing Act 1985 and Disability Discrimination Act 1995 - appeals dismissed



Manchester City Council v Romano; Manchester City Council v Samari: CA (Lords Justice Brooke and Jacob and Sir Martin Nourse): 29 June 2004



The appellants were both secure tenants of the respondent council. In both cases, injunctions were granted against them, following complaints by neighbours, to restrain antisocial and abusive behaviour. These injunctions were not complied with. In both cases, the council applied for possession orders under grounds 1 and 2 of schedule 2 to the Housing Act 1985, relying upon the tenants' behaviour. In each case, the judge found that it was reasonable to grant the order.


At first instance in the second case, and at first appeal in the first case, medical evidence was produced, indicating that both tenants were on medication to treat a depressive disorder. The issue arose as to whether their eviction was contrary to the Disability Discrimination Act 1995. By section 24(2) and (3) of that Act, if the council had evicted the appellants for reasons related to a disability from which they suffered, that would amount to unlawful discrimination. This would also be contrary to section 22(3)(c), unless the council could justify their treatment of the appellants on the basis that they reasonably held the opinion that it was necessary in order not to endanger the health or safety of any person. In both cases, neighbours had given evidence as to the effects of the antisocial behaviour on them. In one case, a neighbour had suffered loss of sleep, while in the other, a neighbour had become depressed.


In the first case, the judge concluded that, although the tenant's condition amounted to mental impairment within the meaning of section 1(1) of the 1995 Act, it did not have a substantial effect on her ability to carry out day-to-day activities, so that the second part of the test was not met and she was not to be regarded as a having a disability. In the second case, the judge held that although the tenant had a mental impairment, it was not the cause of her antisocial conduct. Moreover, he found that the eviction was justified under section 24. On appeal, issues arose as to the relationship between the 1985 and 1995 Acts.


Jan Luba QC, Alyson Kilpatrick and Alexander Durance (instructed by Glaisyers, Manchester) for the appellants; Andrew Arden QC, Michael Lemmy and Robert Derbyshire (instructed by the solicitor to Manchester City Council) for the respondents; Jillian Brown appeared for the interested party, the Disability Rights Commission.


Held: The appeals were dismissed. Where a person complained about disability discrimination, the court had first to determine whether that person was a disabled person within the meaning of the 1995 Act. If so, and if the council were seeking a possession order for reasons related to the disability, that action would be unlawful, unless they could justify their conduct under section 24. The test of justification was both subjective and objective: it was necessary both that the council held the opinion that its action was justified on section 24 grounds, and for that opinion to be objectively reasonable. In the first case, had the section 22 point been taken at the initial trial stage, evidence would have led properly to a conclusion that the neighbours' health was endangered. Furthermore, had the council's opinion to that effect been tested at the trial stage, it would have been held to be objectively reasonable. Consequently, it was not necessary to address the question of whether the judge had correctly concluded that the tenant was not a disabled person within the meaning of the 1995 Act.


In the second case, the judge had erred in his findings as to the tenant's mental state and its effect on her behaviour. However, he was entitled to conclude that the council held the reasonable opinion that the continuation of eviction proceedings was justified in order not to endanger the neighbour's health. Accordingly, the council was justified in seeking a possession order.



Mortgage: undue influence



Mortgages voidable for undue influence - new mortgage substituted over different property - whether invalidity of original mortgages affecting replacement mortgage - appeal allowed



Yorkshire Bank plc v Tinsley: CA (Lords Justice Peter Gibson, Rix and Longmore): 25 June 2004



In 1988, the appellant and her husband took out a second mortgage with the respondent on their house in order to secure the husband's current and future borrowing. In 1991, they entered into a remortgage arrangement with the respondent, so that the previous mortgage was discharged and replaced.


The couple later separated, and the husband stayed with friends at a property that was divided into two flats. In the divorce proceedings, an exchange arrangement was agreed by which the couple's house was transferred to the friends, who in turn transferred the flats to the appellant. The respondent sought a mortgage on the flats, and this was executed in 1994, again securing the husband's current and future liabilities.


In 1997, the respondent required the husband to discharge his indebtedness, and served a demand on both him and the appellant. In 2001, it brought possession proceedings on the basis that the sum of £147,063 was due. In her defence, the appellant contended, among other things, that the 1988 and 1991 mortgages were voidable as against her for undue influence of which the respondent had constructive notice, and the 1994 mortgage was also voidable because it was a replacement for the voidable mortgages of 1988 and 1991. The judge found in favour of the appellant on the first issue, but held that the invalidity of the 1988 and 1991 mortgages did not affect the 1994 mortgage, since it was on a different property. The appellant appealed.


Alex Hall Taylor (instructed by Addleshaw Goddard, Leeds) for the appellant; Peter Knox (instructed by Freemans, London) for the respondent.


Held: The appeal was allowed. As a question of principle, it was natural to expect that if, without more, an obligation incurred between two or three parties was legally ineffective in any way, any new obligation arising out of such earlier obligation would be similarly legally ineffective. The same applied to undue influence.


If a mortgage or guarantee was voidable for undue influence as against a husband and against a bank, a replacement mortgage, even if undue influence was not operative at the time of such replacement, would itself be voidable, if it had been taken out as a condition of discharging the earlier voidable mortgage. That should be the case even if there was a new contract, rather than a mere variation of an old contract.


There was no reason, where the lender was the same on the replacement mortgage, that its constructive notice should invariably be deemed to have disappeared when the earlier mortgage was discharged. In the present case, there was no doubt that the respondent had required the 1994 mortgage on the flats to be granted as a condition of releasing the charge on the house.



The appellant was entitled to succeed in her defence, and the order for possession would be discharged (see Crowe v Ballard (1790) 1 Ves Jun 215, and Kempson v Ashbee (1874-75) LR 10 Ch App 15, considered).