When disability isn't a defence from eviction

The case of servite houses v elaine Perry, heard recently in Birmingham County Court, considers the implications for landlords seeking to evict a nuisance tenant who suffers from a disability covered by the 1995 Disability Discrimination Act.

Servite Houses, a registered social landlord, sought possession of premises occupied by Perry under grounds 1 and 2 of schedule 2 to the 1985 Housing Act, in relation to her antisocial behaviour.

Perry suffered from a form of epilepsy. She took medication to control her condition but suffered fairly frequent seizures that impaired her daily activities. Her epilepsy was considered a disability under the DDA and she received disability living allowance.

Perry had lived at the Servite property for almost 16 years but had breached her tenancy by causing a nuisance and harassing her neighbours.

She had been aggressive and abusive to other tenants and to Servite's employees, using foul language, playing loud music and causing excessive noise.

A claim of discrimination
In injunction proceedings in 2000, Perry gave an undertaking to the court not to cause nuisance or annoyance. But there were further antisocial incidents in 2002, so Servite sought possession and an injunction against her.

Perry argued that if she were evicted, it would be discrimination under the DDA because of her disability.

The judge considered that Perry's behaviour and some of the incidents that had taken place could be the result of her paranoid personality. However, the evidence did not show that her behaviour, or a significant part of it, was caused by her epilepsy or by the effects of the drugs used to control it or that either of these things materially contributed to Perry's disruptive behaviour.

As her behaviour was not caused by her disability, and therefore was not a symptom of it, the issue of discrimination would not arise were she to be evicted.

The judge found that there were sufficient breaches of the tenancy agreement, as well as enough evidence to satisfy ground 2, to make it reasonable to grant a possession order. The order was suspended for 18 months on terms.

The decision is helpful for landlords because it shows that even if a tenant can prove that they are disabled under the DDA, it may still be reasonable to evict them if they cannot prove that their antisocial behaviour is actually symptomatic of their illness.

The fact that they suffer from a disability that is unrelated to their antisocial behaviour is not, on its own, enough for the defence to be successful.

Landlords are in a difficult position: they won’t know if a disability defence can hold until the exchange of witness statements

It's interesting to compare this with the earlier Court of Appeal case of North Devon Homes Limited v Christine Brazier. In this case, the tenant suffered from a clinically recognised mental illness, schizophrenia. As a result, she was also abusive to her neighbours and caused a noise nuisance.

The medical evidence produced in court confirmed that Brazier's antisocial behaviour was indeed a symptom of her illness and she was unable to control it.

Although it was accepted that her behaviour did give rise to a breach of her tenancy, the court decided a possession order was not justified under the DDA so it would not be reasonable in the circumstances to issue one.

Clearly, there are many issues yet to be resolved in relation to the DDA defence.

What would the position be if the antisocial behaviour was symptomatic of the recognised illness but it could be shown that, either with the use of drugs or otherwise, the defendant could control the behaviour or at least limit it?

One presumes that it would still be reasonable to evict but, again, this is an issue that needs to be tested.

No closed case
Already the DDA defence is being used more widely. This leaves landlords in a somewhat difficult position as to knowing how best to proceed with the litigation when they have a vulnerable tenant causing a nuisance.

The landlord may only become aware of the DDA defence after the issue of the possession proceedings, when the defence is actually served upon them.

They will not know if that defence can be substantiated until the point of formal exchange of witness statements when the defendant will be required to disclose their medical evidence in support of such defence.

Considerable costs may have already been incurred up to that point. So it may well be appropriate for landlords, on the defence being served, to either agree to the instruction of a single joint medical expert or to ask the defendant's solicitors to consent to early disclosure of their client's medical evidence.