Akerman-Livingstone v Aster; when is Proportionality not Proportionality?

In August  2014, we reported on the Court of Appeal decision given in the Akerman-Livingstone v Aster Communities Ltd [2014] EWCA Civ 1081.

Mr Akerman-Livingstone had been placed in a property (owned by Aster) by the local authority whilst they were assessing his eligibility for assistance under the homeless legislation. Mr Akerman-Livingstone refused the accommodation that he had been offered - the local authority said it had discharged its duty and asked Aster to seek possession. Aster duly served notice and issued proceedings. Mr Akerman-Livingstone claimed the protection of the Equality Act 2010 due to a disability and so claimed eviction would be disproportionate due to his disability. The Judge at first instance dealt with the proportionality issue on a summary basis; this approach was appealed and considered by the Court of Appeal, who found that the Judge at first instance had been correct and that section 15 Equality Act defences were capable of being dealt with summarily, in the same way as proportionality defences raised under Article 8 of the European Convention on Human Rights ("ECHR").

Mr Akerman-Livingstone was granted permission to appeal further. The matter was heard by the Supreme Court in December 2014 and judgment was handed down on 11 March 2015.  The facts of the case were such that the Supreme Court's decision made no practical difference to Mr Akerman-Livingstone. It is a decision, however, which is likely to have repercussions on all social housing landlords - and possibly even beyond - when seeking possession from tenants who claim the protection of the Equality Act.

A detailed discussion of the decision is not possible in a short article. The headline, however, is that the Supreme Court found that the need to consider whether a landlord's actions are a proportionate means of achieving a legitimate aim do require a more detailed consideration if an Equality Act defence is raised, rather than if this same argument is raised in an Article 8 defence, and as such an Equality Act defence may not necessarily be suitable for disposal on a summary basis.

The Supreme Court felt that the right to equal treatment under Article 8 ECHR is different from the right to equal treatment under the Equality Act 2010; all occupiers have the right to respect for their home under Article 8, but the right to equal treatment and protection for disabled people against discrimination in relation to eviction is an extra right granted to them by Parliament.

The Court therefore found, in summary, that a structured approach should be adopted when considering the proportionality test of a section 15 defence, requiring the consideration of 4 key questions (drawn from a 2006 reported non-housing case and set out at paragraph 28 of the judgment):-

1.    Is the objective sufficiently important to justify limiting a fundamental right?
2.    Is the measure rationally connected to the objective?
3.    Are the means chosen no more than is necessary to accomplish the objective?
4.    Do the means justify the ends?

The Court found that, given that this structured approach should be considered and given that these are clearly not easy issues to address, a summary assessment of a section 15 defence was not usually suitable.

The judgment will have various implications. Although it does not prevent a landlord from seeking summary judgment altogether, it makes it less likely that cases will be quickly dispensed with. Landlords should therefore prepare themselves for the "long haul". Further, it is likely that tenant advisers will carefully examine their client's medical history to see if there is anything which can be found to be a disability which would trigger a section 15 defence. Landlords should therefore prepare themselves for the probability that a section 15 defence will be raised whenever possible by tenants, which could in turn lead to arguments about what is and what is not a disability becoming a time-consuming distraction or side issue to the main claim.

The importance of a good proportionality assessment has again been brought to the fore. Although the proportionality assessment may not quite be the sword it used to be, landlords should still ensure that it is carried out. Landlords who issue proceedings against a tenant without carrying out this due diligence about the tenant and the history of the tenancy will face problems.