ASB Possession and the Equality Act 2010

A guest blog kindly provided by MSB Solicitors

Possession proceedings and evictions are the ultimate legal tool when dealing with anti-social behaviour.  It is usually the last resort and the option that we turn to when all other alternatives have failed, and/or when the antisocial behaviour is so serious, a landlord feels it has no alternative option to protect communities and their colleagues.

An eviction is a serious matter – it potentially makes a person homeless, and this goes against one of the underlining aims of most social housing providers, which is to provide affordable, quality, secure and safe homes, and communities.  

If a social landlord is faced with no option but to consider possession proceedings, it must have carefully considered its duties under the Equality Act 2010.  This applies to all possession claims but is most prevalent when dealing with proceedings based on anti-social behaviour (grounds 12, 14 and or 7a Schedule 2 to the Housing Act 1988 (as amended)).   

The Equality Act 2010 legally protects people from discrimination in wider society. It sets out the different ways in which it is unlawful to treat someone. The Equality Act protects everyone against discrimination as we all have protected characteristics. Under the Equality Act, the nine protected characteristics are:

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation

There are four main types of discrimination. These are:

  1. Direct discrimination – This means treating one person less favourably than another person because of a protected characteristic. 
  2. Indirect discrimination – This can happen when there is a rule or a policy or a way of doing things in place which has a less favourable impact on someone with a protected characteristic than someone without one. 
  3. Harassment – This means people cannot treat you in a way that violates your dignity, or creates a hostile, degrading, humiliating or offensive environment. 
  4. Victimisation – This means people cannot treat you unfairly if you are taking action under the Equality Act. 

The Equality Act also requires social landlords to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different people when carrying out their activities. This is the public sector equality duty (PSED).

Further, section 35 of the Equality Act specifically makes it unlawful for a landlord to discriminate against or victimise someone, on the basis of a protected characteristic, when managing a property. 

If a social landlord issues a claim for possession, a tenant may well raise an Equality Act Defence by claiming discrimination.  We often see this in claims where the tenant suffers from a long standing mental impairment and is therefore disabled pursuant to the EA Act 2010 and their conduct, which is being complained of, is argued by the tenant to be a consequence of that disability.    

Consider this possible scenario…….

The tenant suffers from paranoid schizophrenia. As a direct consequence of their mental impairment, which is long standing and substantial, they play loud music at night. This helps them sleep. This loud music however is causing a nuisance and or annoyance to the neighbours. If the landlord in this case was to start possession proceedings, the tenant may raise a defence under the Equality Act 2010, as the landlord is arguably discriminating against the tenant, as the conduct being complained of is a direct consequence of the tenant’s disability, and therefore they are being treated less favourably or worse because of their protected characteristic. 

Now we appreciate noise ASB cases are rarely as clear cut as the above example, and a set of headphones is likely to solve the above problem, but you get the point. Sometimes there is a clear and/or indirect link between the disability and breach of tenancy and/or ASB. 

If a tenant is successful in raising an Equality Act Defence, your possession claim will likely fail, which means not only will you not secure an eviction, your organisation may have to pay legal costs and explain to the victims and community why the tenant / perpetrator is still in occupation.

So, what do we do when faced with this scenario…

Social landlords may have a defence to a claim of discrimination if they can show the alleged discriminatory act, i.e., possession claim, was a proportionate means of achieving a legitimate aim. It will only be proportionate if it is in pursuit of a legitimate aim, it is rationally connected to the legitimate aim and it is a measure which is no more than is necessary to achieve the legitimate objective.

This means it is vital that social landlords consider their duties under the Equality Act 2010 when dealing with all ASB cases and consider if their actions are proportionate means of achieving a legitimate aim and whether it’s actions are in line with the PSED.  A social landlord must identify its legitimate aim and it must consider if there are any alternatives to possession. The impact of the decision to seek possession must/should be weighed against the impact the ASB is having on others who may also have a disability or vulnerability, and also upon the social landlord’s exercise of housing management functions and it’s housing stock. This can demonstrate that a social landlord has done a reasonable and proportionate balancing exercise.

Here are MSB’s top 10 points to remember when dealing with ASB possession and the Equality Act 2020

  1. You must gather evidence on any protected characteristic. For example, is the perpetrator disabled? What information do you hold on your records?  What information can you gather from third parties and or the perpetrator themselves. 
  2. You must consider whether there could be a link between the behavior complained of and the possible disability. 
  3. Have all other reasonable alternatives to the current legal action being considered, been ruled out or exhausted? You must evidence this. If an injunction isn’t possible due to an issue surrounding capacity for example, set out what evidence you have to support this.
  4. Consider it carefully– is possession proportionate?  What is the legitimate aim? You must know what your legitimate aim is, it could for example, be to provide safe communities and prevent on going ASB.
  5. Complete a Justification exercise. This is a form you can complete which should lead you through the necessary considerations. If you need a template, contact us at MSB.
  6. Complete a PSED review – consider it and document it. Again, if you need a template, contact us at MSB.
  7. Keep good records. You must be able to prove what alternatives you have tried. Evidence, evidence, evidence!
  8. Take stock when you receive new evidence – your duty is ongoing. If new evidence comes to light, you must review it and document whether this changes your decision to proceed with litigation. 
  9. Continue to review throughout the case… keep the Equality Act 2010 firmly in mind when there is any decision-making on the matter. 
  10. This is not a tick box exercise! If the Court suspects a social landlord has not given the duties under the Equality Act 2010 proper consideration and/or due regard, your legal action may fail. 

Finally, if you work in the field ASB & litigation, we would suggest you read the case of Rosebery Housing Association Ltd v Williams & Anor https://www.bailii.org/ew/cases/Misc/2021/22.html and Akerman-Livingstone (Appellant) v Aster Communities Limited (formerly Flourish Homes Limited) (Respondent) https://www.bailii.org/uk/cases/UKSC/2015/15.html 

If you have any questions about this blog and/or Possession and the Equality Act 2010, please do not hesitate to contact Louise Murphy, Head of Social Housing and Regeneration at MSB louisemurphy@msbsolicitors.co.uk  0151 281 9040

Further information on MSB’s Social Housing and Regeneration Team can be found at https://www.msbsolicitors.co.uk/our-expertise/social-housing-regeneration/ 

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