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Ratcliffe v Patterson: rare victory of a defence and counterclaim based on disability discrimination against a private landlord (23 March 2020)

Date: 23/03/2020
Duncan Lewis, Main Solicitors, Ratcliffe v Patterson: rare victory of a defence and counterclaim based on disability discrimination against a private landlord

This county court judgment is a rare victory of a defence and counterclaim based on disability discrimination against a private landlord, in respect of which the tenant was awarded the sum of £2,200.

Case Summary

The tenant also brought counterclaims for damages and disrepair as well as a fine against the landlord arising from the failure to protect the tenant’s deposit, for which she was awarded the sum of £2,850 and £3,907.20 respectively.

The tenant moved into the property in December 2014 and was granted an assured shorthold tenancy for six months. In June 2015 the tenancy became a statutory periodic tenancy. On 4 June 2018 a fresh tenancy agreement was granted to the tenant for 12 months.

The tenant has been diagnosed with multiple health problems including; obstructive sleep apnoea, fibromyalgia, asthma, irritable bowel syndrome, chronic joint and back pain, mixed anxiety, as well as panic disorder and depressive disorder.

The tenant started accruing rent arrears in December 2018 when the dates on which her benefits were paid changed, making it difficult for her to manage her finances. In mid-2019, the tenant was moved onto Universal Credit and by November 2019, the housing element of Universal Credit was being paid to the landlord directly.

On 8 February 2019 the tenant was served with a section 8 notice which relied on Grounds 8, 10 and 11 of Schedule 2 Housing Act 1988. The section 8 notice was signed by Your Move; the landlord’s letting agent.



Legal Proceedings

Possession proceedings were subsequently issued and a defence and counterclaim were filed on behalf of the tenant.

The tenant relied upon expert reports such as Dr Kareem’s psychiatric expert report of 25 October 2019. In it he gave the opinion that “Miss Patterson’s impairments have significant impact on her ability to manage her finances.” He further states that her rent arrears “may have arisen due to her diagnosis” of a particular disorder. Another physician, Dr Jensen, in his report stated that “This constellation of health problems has caused her the majority of issues leading to her being in arrears on her debts, and therefore falling behind on the rent.”

The trial took place on 28 January 2020 and judgment was handed down on 17 March 2020. DDJ Scher found that the landlord could not rely on ground 8 for two reasons.

The first reason was that the section 8 notice did not comply with s44 of the Companies Act 1996. Given the section 8 notice had been signed by Your Move, a company, the court found that it should have been signed by two directors, or one director in the presence of a witness. The court held a section 8 notice is a document that has a formal legal purpose and one which has very serious legal consequences for the tenant. Having found that the section 8 notice had not been properly executed, the court held that it would be just and equitable to dispense with the requirement of service in respect of grounds 10 and 11, but not in respect of ground 8. For the same reasons, the court found that the landlord had not complied with paragraph 1 (g) (vii) of Article 2 of the Housing (Tenancy Deposits) [Prescribed Information] Order 2007 which requires the certificate to be ‘signed by the landlord’.

The second reason was that it would be disproportionate to allow the landlord to proceed on the mandatory ground, on the basis that it would breach s15 of Equality Act 2010.



Four Stage Proportionality Test

The court applied the test set out in Akerman-Livingstone v Aster Communities Ltd [2015] UKSC 15 and was satisfied that the landlord was able to satisfy the first two limbs of the test. Namely that, the objective of restarting the income stream from the property was sufficiently important to justify limiting a fundamental right, and issuing possession proceedings are rationally connected to this aim. However, the court found against the landlord in respect to the last two limbs of the test.

The court was not persuaded by the submission made on behalf of the landlord that the arrears resulted as a result of disorganisation and not as a result of her disability. The court found that the fact that the tenant could on occasion take effective steps was outweighed by evidence supporting that the rent arrears arose as a consequence of her disability.

The court then went onto consider whether the landlord or their letting agent knew or could reasonably have known that the tenant had a disability. The court applying the principles set out by A Ltd v Z [2019] UK EAT 0273_18_2803 stated that:

“I note that Mr and Mrs Ratcliffe must show that it was unreasonable for them to be expected to know that Mrs Patterson a) suffered an impediment to her physical or mental health, and that it had a b) substantial and c) long term effect. They need not have had actual or constructive knowledge of the causal link between the disability and the consequent effects leading to the unfavourable treatment.”

The evidence the court took into account in this respect was that in mid-2018, the landlord had consented to Social Services installing handrails because of the tenant’s mobility difficulty as well as the tenant’s email to Your Move in January 2019 where she states: ‘I’ve not been well myself and have been in hospital for quite some time and have fallen one month behind with my rent payments…is there any way you could possibly help me please’.



Outcome

The court held that the means chosen by the landlord were more than necessary to accomplish the objective and it was disproportionate for the landlord to proceed on mandatory grounds at the earliest opportunity, without taking certain steps such as, meeting with the tenant to discuss bringing her rent account into order and for failing to request direct payment of housing element of Universal Credit.

The tenant was awarded a total of £8,957.20, extinguishing the arrears in full. The court went onto consider whether it would be reasonable to make a Possession Order on the basis of grounds 10 and 11 and ultimately made an Order for the claim to be dismissed.

This judgment is very encouraging for those who represent disabled tenants, it sets out steps that private landlords ought to take to support disabled tenants in maintaining the terms of their tenancy. If they do not take such steps, then they run the risk of being unable to rely on mandatory grounds.



Representation

Luton-based housing solicitor Sadaf Mir represented the Defendant in this case with Clare Cullen of Field Court Chambers representing the Defendant at trial. Robert Brown of Selborne Chambers drafted the Defence and Counterclaim.

For expert and up-to-date legal advice and assistance on all housing matters affecting landlords and tenants contact, Sadaf Mir on 020 7923 8468, or at sadafm@duncanlewis.com.



Duncan Lewis Housing Solicitors

Duncan Lewis Housing Solicitors can guide clients in any matter or issues arising with local housing authorities, housing applications, tenants, landlords, ownership and repairs.

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