Possession, disability and proportionality

Jane Talbot examines a recent High Court decision on possession orders and disability discrimination.

The essence of the decision in Eales v Havering London Borough Council (extempore judgment but note on lawtel) is that the making of a possession order was a proportionate where a tenant in a non-secure contractual tenancy, who was suffering from a psychological disability, had engaged in anti social behaviour. The behaviour was primarily linked to her drinking and drug misuse.

Miss Eales had been convicted of a racially-aggravated public order offence on a neighbour and had a history of acting in an anti social manner.  An injunction was applied for to exclude her from the property together with a claim for possession based on a notice to quit. A defence of public law (failure to follow policy and procedure) and disability discrimination was raised. A psychologist report was produced confirming that she had to address her addictions before her personality disorder could be managed. A possession order was made at first instance based on the view that her behaviour was caused by her drinking and drug use rather than her disability. Miss Eales appealed.

The High Court dismissed the appeal, finding that the possession order was a proportionate means of achieving a legitimate aim of protecting other tenants and effective management of its housing stock. The ratio in Akerman-Livingstone v Aster Communities Ltd [2015] UKSC 15 was followed.

Miss Eales argued that an injunction alone would have been sufficient, this argument was rejected as was the argument that the local authority's failure to refer Miss Eales to the vulnerable persons panel was a material breach. The High Court held that the local authority had been entitled to take a “broad brush” approach.

The Judge had not apparently given a very detailed judgment and was criticised on appeal. The High Court held that it was not necessary to cite every argument and the reasons for the order were obvious.

This case is a useful reminder that there must be a clear causal link between the disability and the behaviour to make out a defence based on disability discrimination. If an expert’s report does not adequately deal with this point, Part 35 questions should be put.

Jane Talbot is a barrister at St Ives Chambers. She can be contacted on 0121 236 0863 or This email address is being protected from spambots. You need JavaScript enabled to view it..