In March 2015, the Supreme Court handed down an important decision, which looked at the fundamental principles underlying disability discrimination law. Akerman-Livingstone v Aster Communities Limited  UKSC 15 concerned the proper approach a court should take when a defender in an eviction action raises a defence of unlawful discrimination by his social landlord, contrary to the Equality Act 2010. The Supreme Court held that a defence of unlawful disability discrimination cannot be dealt with in the same way as defences to possession claims, alleging a breach of Article 8 (Right to private and family life) of the European Convention on Human Rights (ECHR). The Equality and Human Rights Commission intervened in the case.
Mr Akerman-Livingstone had been placed in temporary housing association accommodation after being homeless in 2010. Under English housing law, the local authority had a duty to provide him with secure accommodation but that duty would end if he refused an offer of suitable accommodation elsewhere. Mr Akerman-Livingstone, suffering from chronic and severe mental ill health, had refused numerous attempts to find him permanent occupation. The local authority finally notified him that their duty under the Housing Act had been discharged and brought a claim for repossession.
Mr Akerman-Livingstone’s case was that his mental disability had been the reason that he had not been able to accept any of the offers of alternative properties. He argued that he had suffered unfavourable treatment – the eviction – arising in consequence of his disability and was therefore unlawfully discriminated against as the landlord’s actions could not be justified. Discrimination arising from disability is one of the types of discrimination in the Equality Act 2010 (s15 and s35 (1) (b)). Discrimination arising from disability can be justified if it is a proportionate means of achieving a legitimate aim. The Commission's Services, Public Functions and Associations Code of Practice explains that a legitimate aim must be non-discriminatory and must represent a real, objective consideration; and the means of achieving the aim must be 'proportionate that is must be appropriate and necessary in all of the circumstances. EHRC Services, Public Functions and Associations Code of Practice.
Mr Akerman-Livingstone also claimed that the eviction breached his rights under Article 8 ECHR. This was supported by medical evidence of his vulnerability and need for intensive therapy.
The landlord argued that there was no breach of Mr Akerman-Livingstone’s rights. This was because the eviction was justified as it was a proportionate means of achieving a legitimate aim.
Mr Akerman-Livingstone’s arguments had been unsuccessful both in the County Court and in the Court of Appeal. The lower courts took the view that, although the rights under Article 8 ECHR and Section 15 of the Equality Act 2010 are different, they are not different enough to require a different approach to evictions in social housing claims. They both require the court to ask itself whether the eviction is proportionate.
The Court of Appeal considered the decisions in Manchester City Council v Pinnock  2 AC 104 and Hounslow London Borough Council v Powell  2 AC 186.
In Pinnock, an English housing case in which the Commission had also intervened, the Supreme Court accepted that people facing eviction from their home are entitled to have the proportionality of the decision to evict them assessed by a court. However, it held that a court only had to consider proportionality for the purposes of Article 8 if it crosses the ‘high threshold of being seriously arguable’. Only in those cases would a full possession hearing be required. The Court also found that, in the majority of cases, the eviction will be justified on the basis that it vindicates local authorities' ownership rights and enables them to comply with their public duties in relation to the management of housing stock. In other words, the Supreme Court held that, when an Article 8 defence is raised against eviction actions brought by a social landlord, in the overwhelming majority of cases possession will always be proportionate, and so justified.
The key question in Akerman-Livingstone therefore was how Equality Act defences, i.e. claims of discrimination, should be treated by the courts and whether they can adopt the same approach to these as to Art 8 defences. The Court of Appeal found that they could. It held that "for a tenant to succeed in his disability discrimination case he will have to show some considerable hardship, which he cannot fairly be asked to bear". This meant setting the bar very high indeed for defences to evictions on disability discrimination grounds.
Supreme Court Decision
The Supreme Court unanimously disagreed with the Court of Appeal's approach.
Lady Hale, in her judgment, made it clear that there was a difference between equality rights and Convention rights when considering proportionality. The Equality Act, for example, applies to both private and public landlords whereas Article 8 only applies to public authorities acting as landlords. Equality rights and Convention rights stem from very different sources. All tenants are entitled to respect for their home. However, Parliament, through the Equality Act 2010, had expressly protected tenants against discrimination in relation to eviction. The Supreme Court highlighted that also, through ss.15 and 35, the Equality Act provides specific rights for disabled people in relation to their homes.
The Court also addressed the issue of burden of proof. In Article 8 defences against eviction, it is for the tenant to show that the possession order is disproportionate. However, under the Equality Act, once the possibility of discrimination is made out, the burden of proof then passes to the landlord to show that the eviction is justified.
The Supreme Court concluded that, once the court has satisfied itself that a disability discrimination issue arises, it must fully consider whether the eviction is justified i.e. is proportionate. Whilst there could be situations where an Equality Act defence could be summarily dealt with, importantly, in discrimination defence cases, the proper structured test must be applied when considering whether an eviction was proportionate. This means the Court must consider whether there is any measure short of eviction which might achieve the landlord’s aims, and that the Court must balance the impact on the tenant against the importance of the landlord’s aims. It cannot be taken for granted that the twin aims (i.e. the landlord (1) exercising their property rights and (2) complying with their duties as to the allocation and management of its stock) will justify discrimination.
In summary, the Supreme Court considered that the substantive right to equal treatment protected by the Equality Act 2010 is different from and extra to the Article 8 right; it applies to private as well as public landlords; it prohibits discriminatory treatment; and it grants additional rights to disabled people.
Whilst the case concerns English housing law, the principles set out by the Supreme Court can be applied equally in Scotland. Courts must carefully consider a defence that an eviction amounts to disability discrimination and, importantly, properly examine any claim by the social landlord that their actions are justified that is that the eviction is appropriate and necessary in all of the circumstances.
Despite these findings, the Supreme Court dismissed the appeal, as things had moved on irrevocably since the first county court decision. However, although the outcome was unfavourable for Mr Akerman-Livingstone, the judgment is a positive development for many vulnerable people in social housing. A rejection of a uniform test of proportionality can only be seen as beneficial for those seeking to rely on the strength of the rights given by the Equality Act 2010.
Last updated: 07 Apr 2016