Peabody Trust v Evison (acting by his litigation friend, the Official Solicitor)

Faisel Sadiq (instructed by Haroon Sarwar of TV Edwards) successfully defended a multi-track claim for possession against a tenant who was more than 53 weeks in arrears with his rent. The claim was defended on the basis that it would not be reasonable to make an order for possession and the bringing of possession proceedings amounted to discrimination for the purposes of s.15 of the Equality Act 2010.

Mr. Evison (58 years old) was the assured tenant of a three bedroom house in Battersea. He was granted his tenancy in September 2000. The Peabody Trust was his landlord. Mr. Evison maintained his tenancy without incident until early to mid-2012. In mid-2012, he lost his job and subsequently his rent account went into arrears.

As the arrears accumulated, the Peabody Trust arranged for a rent officer to interview him in September 2012 and again in early 2013 to explain the need to pay the rent and the possibility of possession proceedings if the rent was not paid. By July 2013, the arrears were continuing to increase and so Peabody brought a claim for possession. Mr. Evison did not attend the first hearing of the possession claim in August 2013. Accordingly, an outright possession order was made against him. The order was executed in September 2013, and Mr. Evison was made homeless. At this point Mr. Evison’s sister arranged representation for him with TV Edwards. His solicitor Mr. Sarwar formed the view that Mr. Evison might lack capacity and obtained a report from a consultant forensic psychiatrist on this issue. The psychiatrist’s report concluded that he did lack capacity due to a learning difficulty and that the rent arrears were due to Mr. Evison’s inability to manage his affairs (including applying for housing benefit).

The consultant’s report was placed before the court at a hearing in January 2014. The court found that Mr. Evison lacked capacity and the possession order was set aside pursuant to CPR 21.3(4). The Official Solicitor subsequently agreed to act as Mr. Evison’s litigation friend.

Faisel drafted a defence to the claim. In that defence the court’s attention was drawn to Peabody’s policies for dealing with vulnerable tenants. It was contended that, in so far as discretionary grounds of possession were concerned, it would not be reasonable to make an order for possession given that the arrears arose due to Mr. Evison’s learning difficulties. Additionally, it was contended that Mr. Evison’s learning difficulties amounted to a disability for the purposes of s.6 of the Equality Act 2010. As the rent arrears arose due to this disability it was argued that it would not be proportionate of Peabody to seek an order for possession unless they first complied with their policy. The lack of proportionality would render the seeking of possession disability discrimination for the purposes of s.15 of the Equality Act.

In spite of the defence, Peabody took no step to comply with their vulnerable tenants policy and contended that as they were unaware of Mr. Evison’s disability until the hearing in January 2014 the bringing of the possession claim could not be discriminatory.

At the trial, Faisel argued that even if Peabody was not aware of the disability until January 2014, thereafter they ought to have complied with their own policy and failure to do so amounted to discrimination. The Judge agreed and dismissed the claim for possession.

Faisel is happy to discuss how best landlord and tenants can deal with possession claims against vulnerable tenants that might raise issues of disability discrimination. He can be contacted on 020 7400 9600 and at fsadiq@elyplace.com.