Discrimination defences

For the importance of the Disability Discrimination Act 1995 in anti-social behaviour cases click here.


General principles

Summary disposal of claim

Birmingham City Council v Stephenson

[2016] EWCA Civ 1029


The Court of Appeal allowed an appeal against an order for possession and reviewed the principles to be applied in summarily disposing of a possession claim involving a possible disability discrimination defence.

Relevant statutory provisions

The procedure in possession claims is governed by CPR Part 55, the relevant part of which is as follows:

    "55.8(1) At the hearing fixed in accordance with rule 55.5(1) or at any adjournment of that hearing, the court may – (b) decide the claim; or (c) give case management directions (2) Where the claim is genuinely disputed on grounds which appear to be substantial, case management directions given under paragraph (1)(b) will include the allocation of the claim to a track or directions to enable it to be allocated."”


The Council claimed possession of a flat of which S was an introductory tenant on the ground of noise nuisance. S suffered from paranoid schizophrenia. At the first hearing S was represented by a duty solicitor and obtained an adjournment to file a defence. At the adjourned hearing (9 weeks later), S was represented by a different solicitor who asked for a further adjournment to take instructions and file a defence, relying on the Equality Act 2010. S’s rent account was up to date and there were no recent complaints about his behaviour.

The Deputy District Judge refused the adjournment and made an order for possession. S appealed against the refusal to allow an adjournment, which the Circuit Judge refused. S appealed to the Court of Appeal.

Decision on appeal

The Court of Appeal allowed the appeal. The court reviewed the procedure to be applied at possession hearings under CPR 55, which recognised that the defendant may well not have filed a defence by the time of the hearing but that default judgment was not available. Although CPR 55.8 envisaged that the court may decide the claim without a full trial, it also noted that the existence of a genuine dispute on grounds which appear to be substantial was not a precondition of giving case management directions under CPR 55.8(1)(b).

Had S been a well-resourced individual with no mental disability, the Deputy District Judge’s refusal to allow an adjournment may well have been sustainable, but he was living on benefits, and this judgment took no account of S’s mental health problems.

The correct approach to a case in which a defendant seeks to resist an order for possession on the ground that he is disabled is set out in the Supreme Court decision of Aster Communities Ltd v Akerman-Livingstone [2015] UKSC 15: Possession could be ordered summarily if the landlord could establish that the defendant (i) had no real prospect of establishing that he was under a disability, (ii) that it was plain that possession was not being sought because of something arising in consequence of that disability, or (iii) the claim and its enforcement plainly represented a ‘proportionate means of achieving a legitimate aim’ (per Lord Neuberger at para [59]). Had the Deputy District Judge approached the question in the structured way laid down by the Supreme Court he would have concluded (1) that S was disabled, and (2) there was arguably a causal link between his mental disability and the conduct on which the decision to evict him was based. The burden would then have shifted to the Council to establish that evicting S was a proportionate means of achieving a legitimate aim. Accordingly, the appeal would be allowed and the matter would be remitted back to the County Court. Back to top

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