Landlords must not unlawfully discriminate against disabled tenants, so discrimination based on a disability may in some cases be enough to constitute a full defence in possession proceedings.
Discrimination Arising from Disability
Discrimination which arises from a disability will occur when a landlord (or their agent) has treated a tenant less favourably because of something connected with their disability.
Landlords (and their agents) must not:
– Disfavour a tenant because of their disability
– Harass or victimise disabled tenants.
– Indirectly discriminate against disabled people or treat them unfavourably because of something arising as a consequence of their disability
Indirect Disability Discrimination
In reality, tenants are more likely to rely on indirect disability discrimination than direct discrimination in seeking to defend possession proceedings.
A landlord will be found to have indirectly discriminated against a disabled tenant if the decision to take possession proceedings would still apply to tenants without the same disability, but
– Puts the disabled tenant at a particular disadvantage compared to others with no disabilities, and
– The landlord cannot show it to be a proportionate means of achieving a legitimate aim
Discrimination in Possession Proceedings
Once possession proceedings have started, a tenant may bring a disability discrimination defence. Where the tenant can prove evidence of a likely disability, the case will proceed to a full hearing. Here, the burden will be on the landlord to show that the decision to seek possession is a “proportionate means of achieving a legitimate aim”.
Generally speaking, an action, such as seeking possession, will be fair if it:
– Pursues a legitimate aim – Cases have asked “Is the aim sufficiently important to justify limiting a fundamental right?”
– Explored alternatives first. Could the aim of the landlord have been achieved by less discriminatory means?
– Does not produce an excessive or disproportionate effect.
Proportionality can be interpreted differently depending on the circumstances, but a disabled tenant/occupier would generally be able to argue that:
– Seeking possession is not the means of achieving the landlord’s legitimate aim which least interferes with the tenants right not to be unlawfully discriminated against, in other words there may be a lesser measure than eviction that could achieve the same aim, or
– If seeking possession is the least interfering means, that it produces an excessive or disproportionate effect
Conclusion
The key is to ‘get all your ducks in a row’ before issuing a possession claim. Which means, have evidence ready and put it into a witness statement or an ‘Equality Act assessment’ document. Carry out as full an investigation into any potential disability as possible, having in mind the questions of:
– The facts about any actual or possible disability
– Other, less drastic steps that could have solved the problem
– Is the effect of the claim more damaging on the tenant than the benefit of the possession?
For personalised legal advice on topics like this, contact Woodstock Legal Services.
By Nichola Turpin, Solicitor at Woodstock Legal Services
