Akerman-Livingstone v Aster Communities (Supreme Court)

In brief

The Supreme Court held that a disability discrimination defence to a possession claim under the Equality Act 2010 is different in kind from an Article 8 defence, though the disabled tenant lost on the facts. The tenant relied on section 15 of the Act (engaged through section 35(1)(b), management of premises, in an eviction). The county court and the Court of Appeal had treated that defence in the same way as an Article 8 'home' defence under Manchester CC v Pinnock and Hounslow LBC v Powell, applying the higher 'seriously arguable' summary-disposal threshold. The Supreme Court held that this was wrong: the Equality Act defence differs from Article 8 in kind, not merely in degree ([25]-[33]). First, the burden of proof is different: section 136 shifts it to the landlord once facts capable of showing discrimination are established ([33], [55]), and this is the most important distinction. Second, the right is different: equal treatment, which may require different and more favourable treatment of the disabled occupier, not merely non-interference. Third, Parliament deliberately created an extra right on top of Article 8. The four-stage proportionality test follows from that structural difference; it is not the holding in itself. The tenant was right on the law but lost on the facts: intervening events made the result of any retrial 'a foregone conclusion' [76], so sending the case back would have been pointless, and the appeal was dismissed unanimously ([41], [63], [65], [76], [77]). Decided 11 March 2015.

Key provisions

• [16] — s.35(1)(b) EA 2010 (verbatim) : 'A person (A) who manages premises must not discriminate against a person (B) who occupies the premises... by evicting B.' — framework — the anchor for pleading eviction as unfavourable treatment. The provision in issue is s.15 (discrimination arising from disability) engaged via s.35(1)(b) (Part 4, premises). Reasonable adjustments (ss.20-21) are mentioned only in passing as scheme contrast [15] — not litigated. s.19 indirect discrimination is not engaged.
• [28] (+ the unnumbered quoted continuation) — The four-stage test and its real source : The three-stage core is quoted verbatim from R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213, Mummery LJ at [165] (itself from de Freitas and R v Oakes): 'First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?' Bank Mellat is cited only as authority for the fourth ('fair balance') element — Lord Reed's observation that proportionality 'has always contained a fourth element'. Elias is the primary source; Bank Mellat is a supporting citation for one of four stages, not the framework's source — framework — cite Elias for stages 1-3 and Bank Mellat for stage 4.
• [73] (Lord Wilson) — Stage four confirmed as fair balance : 'Section 15(1)(b) of the 2010 Act requires the claimant to show that the eviction strikes a fair balance between its need to accomplish its objectives and the disadvantages thereby caused to the defendant as a disabled person.' — framework.
• [27]-[33], [55] — Why s.15 is stronger than Art 8 : the core distinguishing reasoning — (a) s.136 burden-shifting to the landlord; (b) a different, stronger substantive right (equal treatment may require more favourable treatment, not mere non-interference); (c) Parliament created an extra right on top of Art 8 — claimant/dual — the s.136 point is the most load-bearing distinction in the judgment.
• [20]-[21], [45]-[48], [57] — The Pinnock/Powell contrast : The entire structure of the judgment. The Art 8 'seriously arguable' high threshold ('the court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable') is expressly held not to apply to EA 2010 defences [47] — framework — the Court's method throughout is: state the Pinnock/Powell Art 8 position, then explain why EA 2010 s.15/s.35(1)(b) departs from it. Without Pinnock/Powell the ratio cannot be stated at all.
• [35]-[36], [64(b)] — The ordinary summary-disposal test : Not a higher bar than Art 8 but a different, ordinary civil-procedure test: 'there should be no presumption that the action is fit for summary disposal... rule 55.8(2) of the CPR calls for a careful evaluation at that initial stage whether the claim is genuinely disputed on grounds which appear to be substantial' — claimant — the anchor for resisting premature possession orders.
• [59] (Neuberger, endorsed by Hale [36]) — The summary-disposal carve-out : Summary disposal remains available in three defined circumstances: (1) no real prospect of establishing disability; (2) plainly no disability-connection to the eviction; (3) the claim and enforcement are plainly proportionate — respondent/dual — a necessary qualifier.
• [64(a)]-[64(c)] (Lord Wilson) — The operative summary : the short-form statement of the whole procedural/substantive ratio — framework — the best single quotable paragraph for a skeleton.
• [17], [53] — The Lewisham LBC v Malcolm lineage : the DDA 1995 'but for' causation problem, reversed by EA 2010 — framework — explains why s.15 needs no comparator.
• [65]-[76] — Application / 'foregone conclusion' : correct law, but the retrial outcome was inevitable on the facts — outcome/cautionary — the wins-the-law-loses-the-case trap.

When relevant

Proportionality assessments in services discrimination cases. Any EA2010 justification defence, reasonable adjustments analysis, or indirect discrimination case where the respondent argues the four-stage test applies. Cited alongside Bank Mellat and Hackney UKSC 2020 for the proportionality framework in services and housing contexts.