Registered Social Landlords will be all too familiar with the reasonableness defences available to tenants facing eviction in the Sheriff Court. However, they may be less aware of an additional defence under the Equality Act 2010 which is increasing in frequency
15 (1) of the Equality Act 2010 (the Act) provides:
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, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim."
Furthermore, s. 35 of the Act (1) provides ?Notes a person (A) who manages premises must not discriminate against a person (B) who occupies the premises ? b) by evicting B (or taking steps for the purpose of securing B's eviction)?
Disabled tenants can claim the protection of these provisions when faced with eviction.
What Can Landlords Do to Protect Their Position?
Landlords should carefully consider the known circumstances of tenants when considering taking eviction action. Particularly, the following questions should be considered:
- Are you aware or could you reasonably be expected to know that your tenant has a disability?
- Is that disability causing the behaviour which prompted you to consider eviction?
If the answer to the above is yes, in any eviction proceedings where such a defence is raised, landlords will require to satisfy the Tribunal that the decision to evict is a proportionate means of achieving a legitimate aim. In determining proportionality, the burden of proof rests with the landlord to satisfy the following:
- Is the objective (ridding the property of this tenant) sufficiently important to justify limiting a fundamental right?
- Is the measure rationally connected to the objective?
- Are the means chosen no more than is necessary to accomplish the objective? Could other less intrusive measures be more appropriate in the circumstances?
- Is the disadvantage caused to the Defender disproportionate to the legitimate aim?
Landlords should prepare for the possibility that a disability discrimination defence could be raised by tenants and carry out an assessment of such a possible defence prior to taking the decision to evict. It is not sufficient to assert that a landlord would treat a non-disabled person in the same way. Lady Hale has confirmed in the case of Akerman-Livingstone v Aster Communities Limited that the Equality Act provides disabled people with rights in respect of the accommodation which they occupy which are different from and extra to the rights of non-disabled people. Landlords may be required to accommodate, or to continue to accommodate, a disabled person when they would not be required to accommodate, or continue to accommodate, a non-disabled person.
It does not amount to unlawful discrimination if the landlord can show that they did not know and could not reasonably have been expected to know that the tenant had the disability. However, the practical reality is that such a position may be difficult for the landlord to maintain if the landlord is notified during the possession proceedings of the disability and continues to pursue eviction.
If you require further advice regarding how disabilities can affect the evictions process please don?t hesitate to contact our court team.
