.
Anti-discrimination law covers not just disabled people themselves, but also those ‘associated’ with them, such as family members. Housing and discrimination law expert David Renton explains how this evolving area of law can be used to protect tenants facing threats from landlords.
Anti-discrimination law is developing law. It develops according to principles set down in the past and is capable of taking in the rights of new groups of people as their needs are identified. A wide set of resources, including the anti-discrimination provisions within article 14 of the
European Convention on Human Rights, can be used to bring emerging categories of people within the protection of the law.
It is not only unlawful to discriminate against someone because of their own disability; it is also unlawful to do so because they are associated with another person who is disabled. Associative discrimination arises as an issue most commonly in housing law in circumstances where a landlord is seeking to evict a tenant (ie, a person named on the tenancy agreement) on account of conduct by another person who might be a family member or lodger but is not the tenant.
In the recent case of
Nightingale and another v Bromford Housing Association Ltd [2024] EWHC 136 (KB); March 2024
Legal Action 35, a housing association sought to evict a family on account of anti-social behaviour. Most of the allegations concerned a teenage boy, Calum Nightingale, who was the son of the tenant. Calum was accused of acts such as stealing cigarettes, racing a motorbike and drinking, which were found to be nuisance to neighbours. Calum was diagnosed with attention deficit hyperactivity disorder and a learning disability, and began to receive medical treatment for the former condition. As a result of that treatment, the allegations were significantly reduced. The question therefore arose: in that case, could – or, in other cases with similar facts, can – the tenant raise a disability defence if they are not themselves disabled?
The short answer is that it depends on which of the torts the tenant proposes to rely on.
The concept of associative discrimination was first developed in employment law. The leading case concerned a legal secretary, Sharon Coleman, who was the principal carer for her deaf son. She resigned and claimed she had been constructively dismissed by her employer, which refused to vary her hours to enable her to care for him. Ms Coleman’s employer insisted that she was not protected by the Disability Discrimination Act 1995 (the precursor to today’s Equality Act 2010), which, on its surface, seemed to provide protection against torts such as direct discrimination only to disabled people and not to those who did not have a disability. Ms Coleman’s case was referred to the European Court of Justice, which held (in
Coleman v Attridge Law and another Case C-303/06, 17 July 2008; [2008] ICR 1128; November 2008
Legal Action 14) that associative discrimination fell within the terms of
Council Directive 2000/78/EC (the Framework Directive), to which UK law gave effect.
Following that decision, in
EBR Attridge Law LLP and another v Coleman UKEAT/0071/09; [2010] IRLR 10; May 2010
Legal Action 12, the Employment Appeal Tribunal held that UK equality law should be read as if direct discrimination and harassment were prohibited against people associated with a disabled person.
Accordingly, if a tenant wishes to defend possession proceedings on the grounds that possession would be direct discrimination or harassment against a person with whom they are associated, there is no difficulty. That defence is available.
In indirect discrimination, the courts have accepted that a person associated with a disabled person (for example, as their parent, carer, etc) can bring a claim of discrimination although they are not themselves disabled. In an allocation case,
R (Nur and another) v Birmingham City Council [2021] EWHC 1138 (Admin); June 2021
Legal Action 40, the defendant landlord conceded that families containing disabled people were entitled to rely on the principle of associative discrimination in order to found a claim of indirect discrimination, even though the tenants concerned were not disabled. The Equality Act 2010 has since been amended to make clear that indirect associative discrimination is prohibited (s19A).
Associative discrimination does not extend to reasonable adjustment cases (
Hainsworth v Ministry of Defence [2014] EWCA Civ 763) for the reason that the European directive to which the domestic law was intended to give effect (article 5 of the Framework Directive) expressly guarantees the right of disabled people only to seek reasonable adjustments.
The question of whether that principle extends to Equality Act 2010 s15 cases in housing disputes is not straightforward. An answer is needed in order to know whether tenants are protected, for example, from possession claims brought to punish them for nuisance committed by members of their household, where the behaviour at issue stems from a disability.
Equality Act 2010 s15
In order to have the protection of Equality Act 2010 s15, an occupier of a property must show that there was some act, or conduct, or ‘something’, that caused the landlord to impose a detriment on the tenant. That ‘something’ must be identified by the court. As Langstaff J explained in
Basildon and Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14/RN; [2016] ICR 305:
The current statute requires two steps. There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The [court] has first to focus upon the words ‘because of something’, and therefore has to identify ‘something’ – and second upon the fact that that ‘something’ must be ‘something arising in consequence of B’s disability’, which constitutes a second causative (consequential) link. These are two separate stages. In addition, the statute requires the [court] to conclude that it is A’s treatment of B that is because of something arising, and that it is unfavourable to B (para 26).
In Nightingale, the court dealt with the matter as follows. The landlord had issued a notice under Housing Act 1988 s21 in order to evict the family. Later, however, and once it became clear that the case was defended on Equality Act 2010 grounds, Bromford maintained that it was proceeding with possession proceedings only by reference to the behaviour of members of the family other than Calum. This argument was accepted at first instance. In the High Court, however, it was held that the landlord’s position was ‘unreal’ (para 37), and that possession could only be granted against the family if the action was a proportionate means of achieving a legitimate aim. Proportionality required the court to consider Calum’s needs. The case was remitted for a further hearing. At it, possession will only be justified if the court takes into account the position in 2024, when that hearing will take place, ie, also bearing in mind the last evidence in relation to Calum’s behaviour.
A landlord seeking to justify potentially unlawful treatment can avoid liability if it can show that the treatment was a proportionate means of achieving a legitimate aim. The leading case on proportionality for the purpose of Equality Act 2010 s15 is
Akerman-Livingstone v Aster Communities Ltd [2015] UKSC 15; [2015] 1 AC 1399 (see November 2015
Legal Action 37). The key question is likely to be whether there any lesser measure that might achieve the landlord’s aims.
The practical steps that advisers should take in associative discrimination cases will vary depending on the nature of the defence. If it is a harassment or a direct or indirect discrimination case, the law is relatively straightforward: associative discrimination cases are clearly permitted and there is not much more that a tenant needs to do than they would if the associative element was missing.
By contrast, in a reasonable adjustment defence, the tenant faces the central difficulty that they cannot ask for adjustments based on the needs of an occupier. Accordingly, practitioners will need to consider whether it is appropriate for a disabled family member to be added as a party. For example, it might be appropriate for the disabled person to bring an Equality Act 2010 s20 claim for reasonable adjustment against the landlord and ask for that to be joined to the main claim.
Regarding s15 defences, the day-to-day practice of the county court appears to be that judges, and indeed landlords, accept that they can be raised by a tenant (in Nightingale, the landlord made no challenge to the principle that such defences apply). But there might be conceptual difficulties in raising a counterclaim to possession in s15, based on associative discrimination. Should a defendant’s legal team want to seek the advantages of a s20 claim – a declaration, damages, as well as the greater likelihood of an assessor’s appointment – any difficulties can be avoided if the counterclaim is brought in the name of the disabled person rather than the main tenant.