Guide to Eviction Where a Tenant is DisabledV1-JC-18052015
In response to any possession claim by a private landlord, even under Section 21, the tenant may have a defence if he/she is disabled, whether physically or mentally. There will then be an additional requirement placed on the landlord to prove that the eviction is proportionate.
Any eviction which results from discrimination where one of the protected characteristics of race, sex etc. is involved may be unlawful but particular issues arise in disability discrimination. Firstly there are special provisions applicable to cases involving disability and secondly it is possible that the tenant will allege that failure to comply with the tenancy terms, e.g. pay the rent or if there is anti-social behaviour, is a consequence of illness, especially mental illness.
The Equality Act 2010 prohibits both direct and indirect discrimination against disabled persons. However, additionally it contains an additional type of discrimination which is specific to people with a disability, i.e. discrimination in consequence of a person's disability. This arises if a landlord treats a tenant unfavourably because of something arising in consequence of the tenant's disability and the landlord cannot show that the treatment is a "proportionate means of achieving a legitimate end".
However, this does not apply if the landlord can prove that he did not know (and could not reasonably be expected to know) if the tenant had the disability.
In particular there can be discrimination in this situation for the landlord to evict the tenant or to take steps for the purposes of securing his/her eviction, e.g. serving a Section 21 notice.
These provisions apply both to social landlords and private landlords. The burden will be on the landlord to show that the tenant should be evicted.
A tenant will be disabled if he/she suffers from a recognised mental or physical illness which has a long term effect, normally lasting for a year or more. If there are facts indicating that the eviction is because of something arising in consequence of a person's disability it will then be for the landlord to prove that it was not. If he/she cannot do so then the landlord would have to show that, nevertheless, eviction was proportionate.
Is eviction justified?
The question to be asked is whether eviction is proportionate. You have to see whether there is any lesser measure which might achieve the landlord's aims. A balance has to be struck between the seriousness of the impact on the tenant and the importance of the landlord's aims. The underlying principle is that the tenant's behaviour may be a consequence of their disability. You have to look to see whether the landlord has done all it can be reasonably expected of him/her to accommodate the consequences of the disabled persons disability. The effects on the tenant have to be outweighed by the advantages of evicting him/her.
The procedure to be adopted
Landlords who take possession actions in Court know that defences of this kind often arise at the hearing for the first time and landlords can view them as being delaying tactics. In the first instance the Court has to consider whether the claim for possession is genuine on grounds that appear to be substantial. Otherwise, the case could be summarily disposed of at the first hearing. For a case to be disposed of summarily the landlord could show (i) that the tenant had no real prospect of proving that he/she was disabled or (ii) that it was plain that possession was not sought because of something arising in consequence of the tenant's disability or (iii) that bringing the claim was clearly a proportionate means of achieving a legitimate aim.
The decision by the Supreme Court in Akerman-Livingstone however indicates that this is likely to be rare in the situation where a tenant's defence of this kind can be dismissed summarily.
Two situations where a landlord could encounter this kind of defence are where there are rent arrears or where the tenant is guilty of anti-social behaviour, particularly affecting neighbours. A landlord relying on Section 21 (or indeed Section 8 claims such as serious rent arrears) would have to demonstrate what actions had been tried short of eviction. For example, direct payment to the landlord where the tenant receives benefits or some other arrangement to secure that the rent was paid would have to be looked at. In the case of anti-social behaviour, interventions, e.g. by social workers, might assist.
Nevertheless, it is unlikely that the Courts would require a landlord to accrue substantial rent arrears or to require adjoining occupiers/neighbours to put up with anti-social behaviour, even if it is a result of the tenant's mental illness. Each case would turn very much on its own circumstances. In particular, where a landlord is aware that the tenant is suffering from a disability, particularly a mental illness, the landlord would have to think about a claim for possession carefully before starting proceedings. In this instance the normal "no fault" right to claim possession under Section 21 would be displaced so the landlord would have to demonstrate that requiring possession was proportionate. As cases will turn on their own facts it is quite possible that, if a defence is raised, there will have to be a full hearing and the case will not be disposed of summarily.