6.11North Devon Homes Ltd v Brazier [2003] EWHC 574 (Admin), (2003) 6 CCLR 245
The fact that an eviction would not be justified under the Disability Discrimination Act 1995 was highly relevant to whether it would be reasonable to order possession and, in this case, it would not beWednesbury unreasonableness:disability discriminationWednesbury unreasonableness:mental illnessWednesbury unreasonableness:nuisance and annoyance
Facts: North Devon Homes (NDH) brought possession proceedings against Ms Brazier because of her nuisance towards neighbours: keeping them awake at night by banging and shouting, using foul language and making rude gestures towards them. On the evidence, this was caused by mental illness.
Judgment: David Steel J refused to make a possession order because any eviction would be discriminatory, in breach of section 22 of the Disability Discrimination Act 1995, in that there was no evidence that NDH had ever formed the opinion that Ms Brazier’s eviction was necessary in order not to endanger the health or safety of any person and there was no evidence that the nuisance towards the neighbours went beyond discomfort and endangered the health or safety of any person:
23. Whilst I accept that fact of unlawfulness under the 1995 Act would not necessarily be determinative of the application under the Housing Act, nonetheless it seems to me that this passage is based upon a misconception. The Act does not bar evictions: only those which are not justified by the specific circumstances set out in section 24. The respondent, having adopted a proper review of the situation in accordance with the express terms of the Act, may conclude in the future that the health and safety of her neighbours are prejudiced and thus steps should be taken to evict the appellant. But this situation has not arisen.
24. As I see it, the fact that the ‘eviction’ of the appellant is not justified by the terms of the Act and is thus unlawful is a highly relevant consideration in the exercise of the discretion:
(i) Whilst it may be true that ‘the degree of misbehaviour’ is significant, without much prospect of it ‘abating’, the fact remains that the 1995 Act furnishes its own code for justified eviction which requires a higher threshold.(ii) Against that background, the court is accordingly being invited to exercise its discretion by way of promotion of unlawful conduct: compare section 57.(iii) Furthermore, the limitations on interference with the appellant’s right to respect for her home are set out in the 1995 Act. It is appropriate for the powers accorded by the 1988 Act to be read in a compatible manner: see section 3 of the Human Rights Act 1998.
25. For these reasons, I conclude that it was not appropriate to make an order for possession in this case and the appeal is allowed.