Readers may be interested to learn that I have been contacted by a landlord who tells me that his tenant is defending, or rather seeking to overturn, a possession order obtained via the accelerated procedure under section 21, under the provisions of the Disability Discrimination Act 1995. This is the very situation I was concerned about when I wrote my earlier posting on the Malcolm case.
The landlord brought the claim after it became apparent that the tenant was spending her housing benefit on other things, although this was not specified in the particulars of claim, which (as is usual) gave no reason for the claim other than that the notice had been properly drafted and served and that the tenant had not vacated. Her lawyers however are claiming that the reason why she has not paid her rent is because she is suffering from a mental disorder, and therefore the landlords action in evicting her is discriminatory and unlawful.
The landlord is aghast at this claim, as if it succeeds he is faced with the prospect of this tenant remaining in his property indefinitely, free of charge. How, he asks, is he expected to pay his mortgage and other expenses on the property? Is this really what the draftsmen of the DDA 1995 intended?
The tenant is in receipt of legal aid and the landlord has been told by her lawyers that they will fight the case all the way to the European Court if necessary. The poor landlord however has no legal assistance and is unable to afford expensive legal fees (particularly as he is not receiving rent!).
If this claim succeeds, bearing in mind that the landlord had no idea that the tenant was suffering any mental problems, it will have serious repercussions throughout the whole of the letting industry. The landlord has agreed to keep me informed of the outcome of the case.
Be interesting to see how this one pans out. But the tenant first is going to have to establish, presumably to the civil level of proof, that the Claim for possession was brought because of the rent arrears, surely. Unless the landlord has already admitted this, it could be tricky for the tenant. Does the landlord have any other valid reason for wanting possession? It sounds like s/he doesn’t from your account, though.
A similar problem has arisen in employment cases under the DDA. Employees on long-term sick leave as a result of a disability have argued that they should continue to be paid even after company sick pay has been exhausted, either as a “reasonable adjustment”, or because the failure to pay them is disability-related discrimination (because the reason for the non-payment is that the employee is not working, and this is related to the disabilty). This is arguably similar to a disabled tenant trying to remain in a property without paying rent – it is effectively an argument that the disability should entitle you to something for nothing. However, the Court of Appeal has recently resolved this in the employer’s favour in O’Hanlon v HMRC. It approved the judgment of the Employment Appeal Tribunal that continued payment was not required as the purpose of the DDA is “to recognise the dignity of the disabled and to require modifications which will enable them to play a full part in the world of work… it is not to treat them as objects of charity”. The courts in landlord and tenant cases should arguably also take this as guiding principle.
Hopefully this case has been dealt with now, noticing when it started, although it wouldn’t surprise me if it was ongoing. If the tenant is unable to cope with their own personal affairs, why have they not appointed a family member/friend to manage their affairs? Do social services have some responisbility to this tenant? If housing benefit dept. were made aware of the disability, surely they would be responsible for making sure that the money reaches the landlord as duty of care to the tenant? Therefore not putting them at risk of eviction. Also could it be benefit fraud if the tenant is claiming housing benefit, and not using it to obtain secured housing?
This case ended some time ago, and since then we have had a court of appeal decision on the Malcom case: http://www.landlordlawblog.co.uk/2008/06/26/malcolm-reversed/