Proportionality and the Equality Act 2010 s.15.

'Proportionality' discussions have been a regular feature in housing-related cases over recent years and the subject has again come to the fore in a recent case before the Court of Appeal, with the focus being on whether the need to demonstrate proportionality under the Equality Act 2010 requires the same approach as the Article 8 ECHR 'proportionality' defence.

In the case of Jonathan Akerman- Livingstone v Aster Communities Ltd [2014] EWCA Civ 1081, Mr Akerman- Livingstone appealed against a decision that he did not have a seriously arguable case that the respondent housing association had breached s.15 of the Equality Act 2010.

The appellant was homeless and had been housed temporarily by the local authority in an Aster property. He was then offered alternative, permanent accommodation to move to. A refusal of this accommodation would result in the local authority's homeless obligations being satisfied. Unfortunately the appellant was suffering from a stress disorder and could not cope with the decision he had to make. The appellant therefore failed to make a decision r.e. the permanent accommodation he was being offered. The local authority said their duties had been discharged and asked Aster to seek possession of the temporary accommodation, so it could be re-let to others awaiting housing. Aster duly gave the appellant notice and then commenced proceedings for possession. The appellant defended those proceedings, contending that the eviction would be disproportionate due to his disability. The Judge on first instance granted Aster possession on the basis there was no need for a full trial to take place. A subsequent Judge agreed with this on appeal. The appellant then brought the matter before the Court of Appeal.

The Court of Appeal looked at s.15(1) (b) of the Equality Act 2010 and the need for Aster to demonstrate that the proceedings are a proportionate means of achieving a legitimate aim. The Court looked at the proportionality cases in relation to Article 8 (notably Pinnock and Powell), which had established the same proportionality requirements. The Court highlighted Powell where the Court have suggested the twin aims of making a possession order were (1) vindicating the housing authority's ownership of the property and (2) enabling it to fulfil its public duties on the allocation and management of its housing stock. These twin aims were found to be equally valid in respect of the Equality Act 2010. Further, the court found no merit for the argument that the weight to be given to the social landlord's interest is somehow diminished where the tenant is relying on disability discrimination than where the tenant relies on Article 8.

The court recognised that the countervailing interest of the social landlord is strong due to its finite stock of housing; it must be able to weigh up his need against the need of others requiring urgent accommodation. In this case the circumstances were not sufficient to outweigh such interests, noting that offers of accommodation were made to the appellant but were rejected. The Court noted that, taken to the extreme, Aster would be prevented from obtaining possession until the disability had been resolved. The appellant's application was therefore unsuccessful.

The fact that the appellant was unsuccessful should not lead housing providers to become complacent. Proportionality looks like being a long term feature in possession claims and should always now form part of a landlord's decision making process when considering whether to bring possession proceedings.