Akerman – Livingstone – v – Aster Communities Limited  UKSC 15, 11 March 2015
The Supreme Court has overturned the decision of the Court of Appeal and thus concluded that disability discrimination defences to possession actions under the Equality Act 2010 do not have to face the same “seriously arguable” summary test as Article 8 defences to possession actions by local authorities.
The Appellant is a 47 year old man who had been diagnosed with Prolonged Duress Stress Disorder or Complex Post Traumatic Stress Disorder. The Appellant was homeless and was placed in temporary accommodation. Several offers of accommodation were made to him all of which he declined to accept. He was served with a Notice to Quit with regard to the temporary accommodation.
A Defence was filed raising three grounds of defence:- disability discrimination; Article 8 of the European Convention on Human Rights; and a public law defence based primarily on breach of the Public Sector Equality Duty. There were reports provided on behalf of the Appellant from a psychologist. In the third of these reports, the psychologist stated “[W]e are not dealing here with a man who thinks and behaves in a reasonable and socially acceptable way but with someone who is profoundly mentally ill and who needs help”. A further homeless application led to a yet further offer which was also declined by the Appellant. The possession action was reinstated.
In dismissing the Defence, HHJ Denyer concluded that the case should be dealt with in the same way as a Defence in a Pinnock and Powell case (see below). An appeal by the Appellant to Cranston J was dismissed and so was the further appeal to the Court of Appeal.
In Manchester City Council – v – Pinnock  2 AC 104, the Supreme Court concluded that the making of a possession order in a case where there was, on the face of it, no defence to the action was, firstly, to vindicate the local authority’s property rights, and, secondly, to enable the local authority to comply with its statutory duties in the allocation and management of the housing stock available to it. These twin aims should be a “given” which did not have to be explained or justified by the local authority unless it wanted to establish some further reason in the particular case. Thus in virtually every such case there will be a strong case for saying that the Possession Order would be a proportionate means of achieving those aims. As a general rule, therefore, Article 8 should only be considered if it is expressly raised by or on behalf of a residential occupier and initially should be considered summarily and only allowed to proceed if, were the facts alleged to be made out, it might make a difference.
Equality Act 2010 Section 15 states:-
(1) A person (A) discriminates against a disabled person (B) if-
a) A treats B unfavourably because of something arising in consequence of B’s disability,
b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim;
(2) Sub-section (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
Lady Hale, in the Supreme Court in the Akerman – Livingstone case stated, at para 18:-
Where section 15 is raised, therefore, and assuming that the Defendant is in fact disabled within the meaning of the Act, there are two key questions:-
(a) whether the eviction is “because of something arising in consequence of B’s disability”….and if so (b) whether the landlord can show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.
Before the case came to the Supreme Court, the courts below took the view that whatever differences there may be between the rights contained in Article 8 and Section 15, they are not such as to require a different approach to evictions from social housing.
The Supreme Court looked at what has been called the “structured approach” to Article 8 Defences. Lady Hale stated as follows:- “the concept of proportionality contained in Section 15 is undoubtedly derived from European Union Law which is the source of much of our anti-discrimination legislation. Three elements were explained by Mummery LJ in R (Elias) – v – Secretary of State for Defence  1 WLR 3213 at para 165:-
“First is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective. Thirdly, are the means chosen, no more than is necessary to accomplish the objective?”
This three-fold formulation was drawn from the Privy Council case of DeFreitas – v – Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing  1 HC 69, 80, which was itself derived from the Canadian case of R – v – Oakes  1 SCR 103. However, as Lord Reed explained in Bank Mellat – v – Her Majesty’s Treasury (no 2)  UKSC 39,  AC 700, para 68 et seq, this concept of proportionality, which has found its way into both the law of the European Union and the European Convention on Human Rights has always contained a fourth element. This is the importance, at the end of the exercise of the overall balance between the ends and the means: there are some situations in which the ends, however meritorious, cannot justify the only means which is capable of achieving them….
29. In Pinnock and Powell, the supreme court rejected this structured approach to proportionality where article 8 was the only defence that could be raised in answer to a possession claim by a social landlord…
30. It simply does not follow that, because those twin aims will almost always trump any right to respect which is due to the occupier’s home, they will also trump the occupier’s rights…The aim of vindicating his property rights would indeed be a “given”, but is scarcely likely to be sufficient to justify a discriminatory provision, criterion or practice.
Therefore Lady Hale concluded that the “structural approach” should apply to Equality Act 2010 defences and not the Pinnock and Powell approach.