High Court Rules in Favor of Tenant in Disability Discrimination Case Against Housing Association

Citation: [2024] EWHC 136 (KB)
Judgment on


The case of Kevin Nightingale & Anor v Bromford Housing Association Limited is pivotal in examining the interplay between possession orders and anti-social behaviour in the context of tenant protections under the Equality Act 2010. This article aims to dissect the High Court’s analysis and application of the legal principles, with particular regard to discrimination arising from disability and proportionality under the said act.

Key Facts

Kevin and Anor Nightingale, appellants in this case, were tenants at a property managed by Bromford Housing Association Limited (the respondent). Following a series of anti-social behaviours and complaints, Bromford decided not to renew the Nightingales’ tenancy. Subsequently, Bromford served a notice under section 21 of the Housing Act 1988, requiring possession. The appellants’ son, Calum, whose behaviour was among the reasons for seeking possession, was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), a condition acknowledged as a disability under the Equality Act 2010.

The Nightingales contended that the eviction would breach section 15 of the Equality Act 2010, as it would discriminate against Calum due to his disability. The trial judge rejected this defence. The appellants challenged the trial judge’s rulings on several grounds, leading to an appeal.

The appeal revolved around the correct application of the following legal principles:

  1. Unfavourable Treatment due to Disability (Equality Act 2010, Section 15): It was contended that the trial judge erred in the causation test under section 15 by excluding Calum’s disability-influenced behaviour as a significant factor in Bromford’s decision to seek possession. The trial judge’s rejection of the argument that service of the section 21 notice was “not significantly influenced by any discrimination as a result of Calum’s protected characteristic” was a key point of contention.

  2. Justification Defence (Proportionality): The trial judge went on to consider the justification defence despite the earlier conclusion on causation, considering whether Bromford’s actions were “a proportionate means of achieving a legitimate aim.” However, the appellants argued that the judge, in his assessment of proportionality, should not have taken Calum’s behaviour into account, as Bromford no longer relied on the allegations against Calum by the time of the trial.

  3. Relevance of Up-to-Date Facts in Proportionality Assessment: The Supreme Court decision in Aster Communities Ltd v. Akerman-Livingstone was cited by both parties, referring to the need for a proportionality assessment based on facts as at the date of trial. The appellants submitted that the judge failed to base his proportionality assessment on the latest evidence available.


The High Court’s analysis led to the following conclusions:

  1. Causation and Discrimination: The Court held that the trial judge had inconsistently concluded that Calum’s ADHD-related behaviour did not significantly influence Bromford’s decision, despite earlier acknowledgments to the contrary. Hence, the first ground of appeal was made out, recognizing that Calum’s conduct, resulting from his disability, had a material influence on the decision to seek possession.

  2. Proportionality and Justification Defence: The Court found that the trial judge did not err in considering Calum’s behaviour while assessing Bromford’s justification defence. The second ground of appeal was thus not made out.

  3. Current Facts for Proportionality: The High Court held that the trial judge failed to assess proportionality based on updated factual circumstances, namely the absence of evidence of anti-social behaviour in the two years leading up to the trial. The Court agreed with the third amended ground of appeal, setting aside the possession order and remitting the case for a further hearing with up-to-date evidence.


The appeal in Kevin Nightingale & Anor v Bromford Housing Association Limited reinforces the imperative nature of considering causation and proportionality in possession proceedings, especially in the context of disabilities. The High Court has clarified that both historic and current behaviours of tenants are relevant to the justification defence under the Equality Act 2010. In remitting the case for a further hearing, the Court underscores the fluidity of proportionality assessments and the necessity for them to be rooted in the most recent evidence. This decision serves as a substantial reference for housing associations and tenants alike, illuminating the complexities of eviction proceedings interlocked with disability discrimination claims.

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