Disability discrimination – New guidance from the Supreme Court

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It is becoming more and more common to see defences raised to possession proceedings which rely on disability discrimination and the Equality Act 2010. The Supreme Court has now given guidance on how to deal with these defences following the case of Akerman-Livingstone v Aster Communities.

The Court must consider:

  • Is the Defendant disabled within the meaning of the Act?
  • Is the request for possession in consequence of the Defendant's disability?
  • Is possession a proportionate means of achieving a legitimate aim?

Whilst none of this is new, the Supreme Court has gone further by stipulating that such issues need to be explored in a full trial, ie not in a "summary hearing" which is usually a much quicker process. This means that a defence based on disability discrimination is likely to result in a longer court process than we have so far been used to. This is different to the way in which Article 8 defences are usually dealt with, as they are often concluded at a summary hearing.

Landlords need to be prepared for longer and more expensive possession cases where disability discrimination defences are raised. Landlords should review any ongoing cases to ensure they are justified in taking action and have submitted strong evidence to support their position.

It continues to be vital that landlords prepare for such defences by having detailed written records of decision-making, bearing in mind any disabilities on the part of the Defendant. Justification needs to be established at the start of any intervention, not just when legal proceedings are on the horizon.

If you would like to discuss the ramifications of this case in any more detail, please do not hesitate to contact me for an informal chat.