Key Facts
- •The Nightingales were tenants of a Bromford Housing Association property.
- •Numerous incidents of anti-social behaviour led Bromford to not renew their tenancy.
- •Bromford served a Section 21 notice seeking possession.
- •The Nightingales defended on the grounds of discrimination under section 15 of the Equality Act 2010 due to their son Calum's ADHD.
- •The County Court granted possession to Bromford.
- •The Nightingales appealed, raising issues with the judge's application of causation and proportionality tests under the Equality Act.
Legal Principles
Section 15 of the Equality Act 2010: Discrimination arising from disability.
Equality Act 2010
Causation test under section 15 of the Equality Act 2010: Whether the unfavourable treatment was 'because of something arising in consequence of B's disability'. The 'but for' test is not the correct approach.
Nagarajan v London Regional Transport [2000] 1 AC 501
Proportionality test under section 15(1)(b) of the Equality Act 2010: Whether the treatment is a proportionate means of achieving a legitimate aim. Assessment should be based on the facts at the date of trial.
Aster Communities Ltd v Akerman-Livingstone [2015] AC 1399; Paragon Asra Housing Ltd v Neville [2018] EWCA Civ 1712
Outcomes
The appeal was allowed.
The judge misapplied the causation test under section 15 of the Equality Act 2010 by using an incorrect 'but for' approach. He also failed to properly assess proportionality based on the facts at the date of trial, focusing on events before the significant delay caused by the Covid pandemic which saw a cessation of any anti-social behaviour.
The possession order was set aside.
The case was remitted to the County Court for further consideration of the proportionality defence based on up-to-date evidence from January 2020 onwards.