Birmingham City Council v Stephenson  EWCA Civ 1029, 27 September 2016.
On moving into the flat, which had no furniture, carpets, or curtains, Mr Stephenson was discharged by his Mental Health Unit in Handsworth in the centre of Birmingham and was not properly taken up by the Mental Health Unit in Longbridge, the unit local to his new flat. As a result, Mr Stephenson was not receiving the prescribed medication,for his paranoid schizophrenia.
Mr Stephenson did not contact CLP until 2 working days before the second hearing of the possession claim on 13 January 2016. Sean Gilmore from CLP took preliminary instructions, attended the hearing and sought a short adjournment to allow a defence to be filed and served. Both sides accepted Mr Stephenson was ‘disabled’ under the Equality Act 2010. Sean Gilmore advised DDJ O’Connell that the grounds of defence would include that eviction would be in breach of the Equality Act and would not be proportionate in terms of article 8 of the European Convention on Human Rights ( right to respect for private and family life and home). DDJ O’Connell, however, was not persuaded there was a defence and found that Mr Stephenson had had ample time to file a defence. He made a possession order.
An appeal was lodged and, in May 2016, HHJ Worster found that DDJ O’Connell had acted within his discretion when he rejected Mr Gilmore’s application for an adjournment and made a possession order.
CLP appealed further on behalf of Mr Stephenson to the Court of Appeal. Lewison LJ gave the leading judgment. He said that DDJ O’Connell’s finding that Mr Stephenson had had plenty of time to file a defence would have been sustainable if Mr Stephenson had been a well resourced individual with no mental disability but, on BCC’s own evidence, Mr Stephenson was living on benefits and had been seen begging in the local shopping parade. He was not, at that time, receiving medication for his paranoid schizophrenia. Lewison LJ stated that DDJ O’Connell took no account of Mr Stephenson’s mental health problems. Mr Gilmore had only seen Mr Stephenson 2 working days before the hearing on 13 January and had taken preliminary instructions. It was unrealistic to have expected Mr Gilmore to have formulated a full defence by the time of the hearing.
Lewison LJ further stated that the Supreme Court case of Aster Communities v Akerman-Livingstone  UKSC 15 outlined the correct approach to a case in which the defendant seeks to resist an order for possession on the ground that s/he is disabled. DDJ O’Connell did not follow this approach and, if he had done so, he would not have made a summary possession order.
Lewison LJ also commented that DDJ O’Connell did not mention the question of ‘proportionality’ at all in his judgment and the possibility of other actions, less severe than eviction, that could have been taken by BCC. He stated that the question of proportionality is not purely a choice of eviction on the one hand and doing nothing on the other hand.
For all these reasons the Court of Appeal allowed the appeal, set aside the possession order and remitted the case to the county court.
Counsel for Mr Stephenson was Zia Nabi of Doughty St Chambers.