Rather shamelessly stolen from http://nearlylegal.co.uk/blog/ but I'm finding it a rather fascinating area of housing law particuarly as I suffered from depression for a number of years. Not the 'oh I don't feel that great today' sort of depression but rather the all encompasing I can't get out of bed, can't wash, eat, go to work (insert normal everyday activity here) sort of depression.
So let's just say for a moment that I'm an assured tenant with zero arrears. I have a breakdown. My depression has a substantial adverse effect on me carrying out day to day tasks. I lose my job and call my Landlord to let them know I'm going to claim housing benefit because I'm ill (I don't say more because I'm embarrased). I go to the doctors and start taking anti-depressants and get referred to see a counsellor (who will later advise that I'm likely to suffer for a few years before getting better).
Sadly I fail to complete the housing benefit form and get into over 8 weeks of arrears. The Housing Association ring me and write to me but I fail to answer as my depression prevents me from interacting. All I can do is do a bit of internet grocery shopping now and again. The Housing Association then start possession proceedings against me on Grounds 8, 10 and 11.
Should the courts grant my Housing Association possession? Have the Housing Association discriminated against me because if you take away my depression I would have no arrears?
Personally I take the Novacold approach in that no possession order should be granted as opposed to the Taylor v OCS Group Ltd [2006] EWCA Civ 702 stance whereby I would be out (at least I think I would be if my reading is right!)
Just a little late night rambling. The answers have been bugging me. Bring on Malcolm!
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4 comments:
It's highly unlikely that a judge would issue an eviction notice under the circumstance but be aware that when the housing society seek a possesion order if it's dated rather than an open-ended order you will automatically lose your security of tenure and become what is known as a "tolerated trespasser". This removes most rights from you.
You could possibly argue that due to your medical condition you were or are effectively disabled which if accepted could be used to prevent eviction proceedings.
I think that as the law stands the answer to your question is that the Court should not grant your Housing Association possession over your home. I say this even if your landlords were able to establish that there were two month’s rent arrears for the purposes of establishing a mandatory ground for possession under Ground 8. This is because (as the law presently stands) your landlords are discriminating against you due to your disability.
In reaching the above answer I have relied almost entirely on Nearly Legal’s interpretation of the Court of Appeal judgment in Malcolm. I hope he won’t mind if I copy and paste some extracts below.
The crux is the interpretation of DDA 1995 s.5, which then read:
(1) For the purposes of this Part, an employer discriminates against a disabled person if –
(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply;
The phrasing of s.5(1)(a) is effectively the same as s.24(1) as addressed in Malcolm. The comparator for establishing less favourable treatment is ‘others to whom that reason does not or would not apply’. The question is the meaning of ‘that reason’.
The appellant argued that ‘that reason’ referred specifically to the reason for the treatment (the first three words of s.5(1)(a)), the inclusion of ‘which relates to the…disability’ being simply in order to specify the link which enables the complaint. On this basis, the comparator would be a person who was capable of performing the job.
The Court’s interpretation of the, admittedly ambiguous, wording of the statute takes in the different provisions in the 1975 and the 1976Acts, and the express requirement of comparison with the treatment of other persons “whose circumstances are the same” stipulated in victimisation cases by section 55(1) (a) of the 1995 Act. This leads it to agree with the latter view.
‘That reason’ refers to the reason for the treatment, not the link to the disability. The proper comparator is someone for whom the reason for the treatment does not apply, not someone who is the same situation but without a link to a disability.
In the case of Malcolm, this works as follows. The reason for Lewisham’s claim for possession was Mr Malcolm’s illegal sub-let, thereby ending his secure tenancy. That reason was related to Mr Malcolm’s disability. To establish whether this was less favourable treatment, the proper comparison is with someone to whom the reason for the treatment does not apply - i.e someone who has not illegally sub-let and ended their secure tenancy. These comparators exist. Mr Malcolm was undoubtedly treated less favourably than them, so discrimination is established. Lewisham didn’t argue justification.
In your scenario this works as follows. The reasons for your Housing Association’s claim for possession is that you have failed to pay rent. The reason for this is related to your depression which I am assuming for the sake of argument can be treated as a disability. As the depression prevented you from maintaining your Housing Benefit Claim and interacting with your Housing Association it seems clear that the claim for possession is for a reason related to your disability. It seems clear that that your landlord would not have taken this action against a person who did not have rent arrears. Therefore your landlord is treating you less favourably than them, so discrimination is established.
I don’t think the recent case of Floyd changes the position. That case was an appeal against a decision where the issue of disability discrimination had not actually been (expressly) raised at the hearing at which the Possession Order was made so arguably there were no grounds for appeal. I do think that there is every possibility that the forthcoming House of Lords decision in Malcolm may change everything and that what I have said here will need to be reconsidered after that decision is given. I therefore think that in your scenario provided a DDA defence/issue was raised that the hearing of your Housing Association’s claim for possession the Court should either give directions for a defended action or adjourn the proceedings pending the House of Lords judgment in Malcolm.
In a nutshell then I think that you have a good defence under the DDA because your landlord is treating you less favourably than someone without rent arrears when your rent arrears have accrued for a reason related to your disability.
Thanks William for the indepth answer. If I am suffering from a disability I wouldn't want to be directly OR and perhaps more importantly, indirectly discriminated against either.
Right now, if a DDA defence were raised, I'd lay odds on the claim being adjourned for the judgment of the House of Lords on Malcolm - due to be heard shortly. Unfortunately, I would make it odds on that the Lords will at best limit Malcolm. At worst...
The Novacold/OCS argument is mostly one about whether or not the landlord requires knowledge of the disability and has to have 'had it in mind' when making the possession claim.
Depression as disability would be a whole other argument though.
Oh and I don't mind being cut and pasted at all, William (Anytime, as long as I get an attribution.)
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