Sunday, April 06, 2008

Bernstein and Floyd

Readers who were interested in my earlier post on the landlord whose disabled tenant appealed against a possession order obtained under s21, will be interested in this quote from the final paragraph in the report in the recent case of S -v- Floyd (with the Equality and Human Rights Commission joined in as an interested party):

one of the members of this court has dealt recently with an application for permission to appeal from a judgment of a Circuit Judge (Bernstein v Tate, December 21, 2007) in a case involving what would normally be a mandatory order for possession under section 21 of the 1988 Act. The tenant claimed that non-payment of rent was due to various health problems including depression, as a result of which she had to stop working, and her incapacity and housing benefit was used in paying off her overdraft instead of the rent. Prior to Malcolm the District Judge made a possession order on the basis that the tenant's disability had nothing to do with the landlord's decision to seek possession. But the Circuit Judge granted a stay, set aside the original possession order and re-listed the matter for evidence of the tenant's disability and further submissions. This appears to have been on the basis that the tenant had a reasonable prospect of success in showing that she was disabled for the purposes of the 1995 Act, and that she was entitled to a stay of the mandatory possession order.

The wording of this quotation seems to imply that the CA do not entirely agree with the Circuit Judge's assessment of the tenant's prospects of success.

The Floyd case itself will bring some comfort to landlords. Here the tenant had an order for possession made against him under the mandatory possession ground 8 as he was over £7,000/123 weeks in arrears of rent. The tenant admitted this but tried, via the appeal process, to prevent the landlord obtaining possession because he suffered a mental disability, citing the Disability Discrimination Act 1995. However the Court of Appeal made it clear that so far as they were concerned, the DDA did not entitle tenants to get out of their legal obligations just because they are disabled:

It is not immediately obvious (a) how the 1995 Act could provide a basis for resisting a claim for possession on a statutory mandatory ground or (b) how a landlord would be unlawfully discriminating against a disabled tenant by taking steps to enforce his statutory right to a possession order for admitted non-payment of rent for 132 weeks. The 1995 Act was enacted to provide remedies for disabled people at the receiving end of unlawful discrimination. It was not aimed at protecting them from lawful litigation or at supplying them with a defence to breach of a civil law obligation. Like other anti-discrimination legislation, the 1995 Act created statutory causes of action for unlawful discrimination in many areas, such as employment, the provision of goods, facilities and services and the disposal or management of premises, but it did not create any special disability defence to the lawful claims of others, such as a landlord's claim for possession of premises for arrears of rent. The legislation is not about disability per se: it is about unlawful acts of discrimination on a prohibited ground, ie., unjustified less favourable treatment for a reason which relates to the disabled person's disability.

However we are all waiting to hear what the House of Lords decide in the leading case of Malcolm, which has been discussed by me previously here. I am sure that all landlords will be hoping that this will make it clear that just because a tenant turns out to be disabled, this does not mean that the landlord will be effectively forced to house them rent free forever. Which would effectively be the case if any attempt to enforce their rights to possession (even where they are supposed to be mandatory) were blocked on the basis that they are discriminatory. Even if (as in the cases of Bernstein and Floyd) the landlord did not actually know that the tenants were disabled.

Note - if you want to read more about the technicalities of these cases, you will find detailed posts on the Nearly Legal blog. However unless you are a housing lawyer (and perhaps even then), you may find it makes your head hurt.

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1 comment:

Nearly Legal said...

Thanks for the link, but that post would make anybody's head hurt - it did mine while writing it - as it is the middle of a complex argument. An earlier post gives a more straightforward account of S v Floyd (http://nearlylegal.co.uk/blog/2008/03/dda-and-mandatory-possession/).

In Floyd, this set of judges are clearly not at all happy with the Court of Appeal decision in Malcolm, but can't do anything about it. The actual decision only confirms, quite rightly, that there has to be a relation between the disability and the reason for eviction.

As you say, we must all wait for the Lords to decide on Malcolm, which is being heard in about 3 weeks time.