Achieving Equality The Challenges and Opportunities for Housing Providers in 2014 Jamie Saunders, Senior Associate

Introduction - Challenges and Opportunities The challenges: Welfare benefits reform MA and SG cases – court reluctant to interfere with bedroom tax; DHP system “cured” any discrimination issue Inverclyde case – upper tier tribunal has effectively ended disability discrimination arguments (sept 2014) Rutherford – potentially an open door if DHP ever unavailable? Advent of Universal Credit – need for tenants to manage own affairs???

Introduction The challenges: Increased regulation in private sector – the requirement to be licensed/registered and the need to do immigration checks Likely to lead to discrimination? Increased cost = increased rent in private sector? Will it improve the performance of “bad” landlords??

Introduction – the Opportunities Anti-Social Behaviour Crime and Policing Act 2014 Putting the victim at the heart of the solution Community Remedy Community Trigger Mandatory ground for possession – controversy

Tenants using Equality Act Challenges Ackerman Livingstone v Aster Communities [2014] EWCA Civ 1081 Court of Appeal case AL was homeless, and in 2010 applied to Mendip DC for housing He was placed in temporary housing with Aster whilst his application was assessed The property was owned privately and leased to Aster in order that Aster could assist the council with its interim duties. Full homelessness duty was accepted AL suffered with prolonged duress stress disorder AL was unable to cope with the decision to move as a result of his disorder

Tenants using Equality Act Challenges Ackerman Livingstone v Aster Communities [2014] EWCA Civ cont He was rejected several different properties – all of which were considered suitable Council considered duty discharged and instructed Aster to end the tenancy Aster did so and then later sought possession In the proceedings, AL alleged discrimination contrary to the Equality Act Possession proceedings were adjourned and the council agreed to accept a fresh homelessness application and gave AL the opportunity to bid for further properties

Tenants using Equality Act Challenges Ackerman Livingstone v Aster Communities [2014] EWCA Civ 1081 – cont AL rejected several further offers Council discharged duty again – AL did not appeal under s204 Aster restored the possession proceedings At the hearing the judge decided to grant an immediate possession order on the basis that AL did not have a “seriously arguable” defence Appeal to the High Court failed Court of Appeal: The Equality Act test for discrimination is essentially the same “proportionality” exercise as for human rights challenges

Tenants using Equality Act Challenges Ackerman Livingstone v Aster Communities [2014] EWCA Civ 1081 – cont The question is whether, if there is discrimination, it is “a proportionate means of achieving a legitimate aim” The need for a social landlord to obtain possession and keep properties available for those in need is a strong one It will outweigh most potential disability discrimination arguments Even once evicted, AL would be owed a limited housing duty to secure accommodation for a reasonable period and provide assistance to find a property

Tenants using Equality Act Challenges Ackerman Livingstone v Aster Communities [2014] EWCA Civ 1081 – cont In light of those points, the judge was right to dispose of the argument “summarily” rather than allowing it to proceed to trial This process involves the judge assessing the claim on the basis that the defendant can prove the facts he is claiming, then looking at whether those facts give rise to a “seriously arguable” defence. If not seriously arguable, the possession order should be made. Case is proceeding to Supreme Court

Tenants using Equality Act Challenges Ackerman Livingstone v Aster Communities [2014] EWCA Civ 1081 Comments: At first blush seems very harsh But social landlords have limited budgets and there is a pressure on properties available It’s a tough call to balance the competing interests of AL’s needs and the landlord’s needs Also relevant that the property owner had terminated Aster’s head lease and wanted to sell to be able to pay off his mortgage. Arguable cases should proceed to trial. But how strong does a case need to be “arguable”?

How not to do it Peabody v Evison [unreported], July 2014 Wandsworth County Court Assured Tenancy commenced 1981; E lived at property with his family. E succeeded to the tenancy in arrears accrued on rent account Possession sought on grounds 10 and 11 Possession order made in E’s absence Combination of factors led to the problems - E lost job, deaths in family, brother moved out. E had learning disability and was unable to fill in HB forms. Also impacted by bedroom tax

How not to do it Peabody v Evison [unreported], July 2014 Wandsworth County Court, cont After eviction, E applied to set aside possession order and was able to demonstrate that he lacked capacity and had multiple disabilities Possession order set aside – DJ said: It should have been clear that P should have done more than simply refer E to the welfare benefits team He was vulnerable – with learning difficulties and mental health needs, and was illiterate Much more should have been done Claim dismissed, P to pay costs

Hot off the press - capacity Islington LBC v QR [2014] EWCOP26 QR – aged 62, application to the court of protection to determine whether she had capacity: To manage own affairs To make decisions to terminate an existing tenancy and enter into a new one To Litigate Really interesting demonstration of how a person can have capacity to do certain things but not others

Hot off the press - capacity Islington LBC v QR [2014] EWCOP26 QR – breakdown in 1995, since then diagnosed with schizophrenia, suffering delusions. History of a number of breakdowns, s2 and s3 Mental Health Act admissions, spells in hospital. Most worryingly several admissions to hospital resulted from renal failure, as a result of QR’s failure to drink because she thought her drinking water supply had been tampered with. This had been life- threatening From 2010, housed in treatment centre subject to a Community Treatment Order, as a result of which she was taking medication

Hot off the press - capacity Islington LBC v QR [2014] EWCOP26 Sheltered accommodation was now available to her, but she would have to enter into a tenancy so it would only be available if she gave up the tenancy of her flat. She refused to give up the flat and did not like the sheltered accommodation Doctors advice: Serious risk of relapse if she were ever to move back to the flat, she needed 24 hour support and monitoring to ensure meds taken QR lacked insight into her condition, did not accept she had a mental illness or needed medication to stay well She did not therefore accept why she was unable to live independently in the flat

Hot off the press - capacity Islington LBC v QR [2014] EWCOP26 The court held that QR did have capacity to manage her day to day affairs and to litigate But, in relation to the questions where should she live, whether to end the tenancy of the flat and whether to enter into a new tenancy, she did not have capacity because of her inability to make a connection between the need to take medication and staying well, and therefore the need to have 24 hour monitoring and support. This meant that whilst she could understand and retain information about these decisions, but could not weigh it up.

Hot off the press - capacity Islington LBC v QR [2014] EWCOP26 As a result, it will fall to the COP to decide, or to appoint someone to decide where QR should live and whether her tenancy should be ended. An interesting demonstration of the capacity test in action, and how lacking capacity for one thing does not mean lacking it for everything

ANY QUESTIONS?