The court should not ordinarily determine summarily a possession claim on disability discrimination grounds that appear to be substantial because, unlike defences under the ECHR, it was not the case that a tenant’s rights under the Equality Act 2010 would almost always be outweighed by the landlord’s property rightsWednesbury unreasonableness:disability discriminationWednesbury unreasonableness:private and family life, right to respect forWednesbury unreasonableness:proportionality

Facts: Mr Akerman-Livingstone had a severe distress disorder and defended possession proceedings on the basis that they involved discrimination against him on the ground of his disability, contrary to section 15 of the Equality Act 2010. The county court judge made a possession order on the basis that such a defence fell to be considered in the same way as a defence under Article 8 ECHR, ie with the effect that a possession order would almost always be a proportionate means of achieving the twin aims of vindicating the local authority’s property rights and enabling the authority to comply with its statutory duties in the allocation and management of its housing stock. He concluded that the defendant did not have a seriously arguable case and that there was no need for a full trial, so he made the possession order. A High Court judge and the Court of Appeal dismissed the defendant’s appeals.

Judgment: the Supreme Court (Neuberger, Hale, Clarke, Wilson and Hughes JJSC) held that because of various recent factual developments in the case, a trial judge would be bound to conclude that a possession order would be proportionate. However, the substantive right to equal treatment protected by section 35(1)(b) of the Equality Act 2010 was different from and stronger than the rights protected by Article 8 ECHR; once the possibility of disability discrimination was made out, the burden was on the landlord to show that there was no unfavourable treatment because of something arising in consequence of the tenant’s disability contrary to section 15(1)(a), or that an order for possession was a proportionate means of achieving a legitimate aim under section 15(1)(b); that it could not be taken for granted that the aim of vindicating the landlord’s property rights would almost always prevail over a tenant’s right to have due allowances made for the consequences of his disability; that where social housing was involved the aim of enabling the local authority to comply with its statutory housing duties might have to give way to the equality rights of a particular disabled person; that, therefore, although such a claim could be dealt with summarily under CPR 55.8(1), that would not normally be an appropriate course if the claim were genuinely disputed on grounds which appeared to be substantial, where disclosure or expert evidence might be required; and that, accordingly, the judge in the county court had misdirected himself in his approach to the claim for possession.