Be prepared

Frank Bruno's hospitalisation this week has placed mental illness on the front pages of the national press, and it is useful to take this opportunity to examine the problem. Mental illness can give rise to unpredictable and challenging behaviour – particularly, as is often the case in social housing, when it is combined with drug or alcohol abuse. For any landlord, a tenant's mental illness will also have a significant impact on the options available for managing the tenancy, and landlords should be aware of their legal position and that of the tenant.

The legal situation of a person suffering from mental disorder can be difficult to understand, but it will affect the access to legal remedy and support from other agencies. Most people who suffer from mental illness will not be detained, but will receive care voluntarily. There may already be a team in place who are able to offer support, but they will not have powers of compulsion.

Behaviour that poses serious risks to the health and safety of the tenant or others may require the tenant to be formally detained under the 1983 Mental Health Act. The police have powers to remove a person suffering from mental disorder to a place of safety, which could be a hospital, and a person can be detained for up to 72 hours for an assessment to take place. A social worker or next of kin can also make an emergency application for admission to hospital for assessment in addition to the usual powers of detention, which will be activated by an approved social worker or nearest relative and on the recommendation of two doctors.

Patients who are liable to be detained in this way will, on discharge, be automatically entitled to free after-care services from social services and the health service. Effective links with local social services and the community mental health service are therefore essential.

If the tenant's behaviour cannot be handled in this way, possession proceedings may be the next step – sometimes as a way to force social services' hand on the issue of more suitable rehousing. A landlord then needs to consider whether or not a "litigation friend" needs to be appointed to conduct the litigation on the tenant's behalf.

A litigation friend is appointed where a person is "incapable, by reason of mental disorder, of managing and administering his property and affairs" as defined in the 1983 Mental Health Act. Where there is evidence of mental ill health, and the tenant has difficulty in managing their own daily affairs such as applying for housing benefit or caring for themselves, it can be of considerable advantage all round for a litigation friend to be appointed. Not only does it ensure the vulnerable tenant is properly advised but it provides a third party with whom the landlord can liaise.

Where a tenant has difficulty in coping with their affairs, it can be of advantage for a ‘litigation friend’ to be appointed

Mental health is also now a factor to be taken into account in the conduct of possession proceedings. Landlords may be faced with a defence of disability discrimination, as happened in the case of North Devon Homes v Christine Brazier. In that case, the housing association sought possession against Brazier on the basis of her serious antisocial behaviour. It was accepted that this amounted to a breach of her tenancy terms and also fell within grounds 12 and 14 of the 1988 Housing Act; but the issue was whether, in the circumstances, it was reasonable to evict.

Brazier argued that it was not reasonable, as it would be unlawful under the 1995 Disability Discrimination Act. Someone discriminates against a disabled person if, for any reason related to that person's disability, they treat the disabled person less favourably than they would another person not similarly disabled and cannot show that such treatment is justified. It is only reasonable to justify discrimination if it is necessary in order to protect the health and safety of any person (including the disabled person) and it is reasonable in all the circumstances.

Brazier produced a psychiatric report that confirmed she suffered from a serious mental illness and was therefore a disabled person within the meaning of the Disability Discrimination Act, and that the antisocial behaviour displayed was consistent with that illness and uncontrollable. The court found that her eviction was not justified under the Disability Discrimination Act and, therefore, it was not reasonable to make a possession order.

In future, landlords may benefit from obtaining their own medical evidence to rebut this assertion and also to illustrate the impact of the defendant's behaviour on their neighbour's health.