The Equality Act 2010 came into force on 1^st October 2010.  I’m still watching with caution how this may impact cases where a landlord is trying to obtain possession from a tenant when they are in default of their tenancy agreement or, perhaps more significantly, when they are not but the landlord wants the property back for any number of reasons.

Prior to The Equality Act, I would confidently advise a landlord client that there was no defence to a claim for possession once a valid Notice under s21 of The Housing Act 1988 had been served, provided good service was effected, but this is no longer the case.

Section 15 of The Equality Act creates a fairly wide concept of disability discrimination in that a person is said to have discriminated against a disabled person if he treats that person unfavourably ‘… because of something arising in consequence of…’ that person’s disability and the person doing the discriminating cannot show ‘..that the treatment is a proportionate means of achieving a legitimate aim.’

How on earth might this impact on a landlord’s right to terminate an assured shorthold tenancy by using the statutory notice procedure regardless of whether the occupant is disabled? Well, seeing as you ask.

 Let’s say the tenant develops a mental illness such that they lack capacity to manage their affairs. If a landlord is aware of this but does nothing to ensure that the tenant understands the nature of the s21 notice, is the landlord discriminating against this tenant in accordance with the Equality Act? Possibly, and that’s why I wait with baited breath for judgments on cases where section 15 is raised as a defence to possession proceedings.

The saving grace for landlords is that the above will not apply if the landlord had no knowledge of the tenant’s disability. Furthermore, if the landlord can show that their actions were a proportionate means to a legitimate end they may be safe.

Whilst the position may not be clear, what I do know is that one of the questions I will now ask any landlord requiring advice on possession is are they aware if the tenant has a disability? If the answer is yes, then we may need to tread a little more carefully to pre empt any section 15 defence. As far as advising landlords who are about to let their property is concerned, I’d suggest that they don’t ask any questions that might make them aware of any disability…hear no evil, see no evil….

Helen Bell

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