Birmingham City Council v Stephenson  EWCA Civ 1029, 27 September 2016 The appellant, S, was an introductory tenant of Birmingham City Council. Following a number of complaints about S’s behaviour toward the end of 2014, primarily consisting of noise nuisance, Birmingham served a notice seeking possession and, following a review of that decision, commenced possession proceedings in September 2015.
Birmingham City Council v Stephenson  EWCA Civ 1029, 27 September 2016
The appellant, S, was an introductory tenant of Birmingham City Council. Following a number of complaints about S’s behaviour toward the end of 2014, primarily consisting of noise nuisance, Birmingham served a notice seeking possession and, following a review of that decision, commenced possession proceedings in September 2015.
The matter came before the County Court at Birmingham in November 2015. S suffered from schizophrenia and it was accepted by Birmingham at the hearing that he had a disability for the purposes of the Equality Act 2010. The evidence put forward by Birmingham referred to S’s condition (described in broad terms as ‘mental health issues’) but asserted that there had been a history of noise nuisance and that S had failed to keep appointments to take his anti-psychotic medication. The hearing was adjourned by the DDJ considering the matter with the proviso that S should use his best endeavours to file a fully pleaded defence prior to the next hearing.
The matter came before the court once more in January 2016. S was represented but had only instructed his solicitor shortly before the hearing and a defence had not been filed. A further adjournment was sought by his solicitor in order that a defence might be filed. The DDJ considering the matter refused the application to adjourn and proceeded to make a possession order summarily, reasoning that there was only a tenuous possibility of a defence, that he had heard plenty from the council about the difficulties they had had with S, that S had had ample time to put in a defence and had no real argument to advance.
S’s appeal to the Circuit Judge was dismissed: the refusal of the adjournment lay within the range of discretionary decision making available to the judge.
The Court of Appeal allowed a second appeal. The DDJ had failed to have regard to S’s mental health problems and had failed to apply the guidance given by the Supreme Court in Akerman-Livingston v Aster Communities Limited  UKSC 15,  AC 1399 on the correct approach to cases raising a possible defence under the Equality Act 2010 based on disability discrimination.
In particular the judge had erred in treating the question of proportionality as a ‘binary choice’ between doing nothing and eviction. There were other intermediate measures which might have been available short of an eviction such as support from social services to ensure that S took his medication, support from mental health professionals, an increase or change in medication, the installation of sound attenuation measures in his flat, agreements with S as to the hours when he might play music, obtaining an injunction or providing S with suitable alternative accommodation. Such steps may or may not have been feasible but they could not be ruled out summarily and the burden of proof lay on Birmingham to establish that nothing short of an eviction would do.
The matter was remitted to the County Court for directions.
Judgment available on Westlaw (£). Not yet on BAILII.