Manchester v Romano & Anor

Introduction

These are appeals by the two defendants Sharon Romano and Yvonne Samari from orders made against them by Judge Armitage QC at the Manchester County Court on 11^th and 13^th November 2003 respectively. The orders were made in favour of their landlords, Manchester City Council (“the council”). The defendants were both secure tenants, and in each case one of the grounds for the possession order was ground 2 of Schedule 2 of the Housing Act 1985 as amended, which provides a ground for possession where:

“the tenant or a person residing in or visiting the dwelling house –

(a)

has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality …”

and where it is reasonable to make the order.

In Ms Romano’s case the judge dismissed an appeal from the earlier order by District Judge Jones to which we refer in paragraph 6 below. In Ms Samari’s case he made an order for possession as the trial judge.

The judge made an order for possession against Ms Samari because he considered it reasonable to do so in all the circumstances. He dismissed Ms Romano’s appeal because he did not consider that the district judge had been wrong to refuse to suspend the execution of the warrant of possession. The only issue which arises on these appeals – and it is a very important one – relates to the interface between housing legislation and the Disability Discrimination Act 1995 (“the 1995 Act”) (and in particular, sections 22(3) and 24 of that Act). The court permitted the Disability Rights Commission (“DRC”) to intervene in the appeals, and we have benefited from the argument of Ms Jill Brown on its behalf.

Ms Romano: The facts

The facts in each case can be stated relatively briefly. Ms Romano became the council’s tenant at a house in Moorcroft Road, Northern Moor, Manchester in November 1998, and her tenancy became a secure tenancy a year later. In May 2001 Mr Recorder Leeming QC granted an injunction restraining her anti-social behaviour towards her neighbours, Mr and Mrs Schofield, and on 13^th June this injunction was continued in force for a further period of six months.

Prior to 13^th June Ms Romano had been convicted of an assault on Mrs Schofield which occasioned actual bodily harm in an incident involving the throwing of a brick. Her conviction was later set aside on appeal because the Crown Court did not accept Mrs Schofield’s evidence, at any rate to the requisite standard of proof.

On 16^th November 2001 the council issued possession proceedings, founded on rent arrears and 60 incidents of anti-social behaviour on the part of Ms Romano and her son W between the last week of April and the first week of November 2001. Apart from the assault, the council’s allegations related to the playing of loud music at inappropriate times, foul and abusive language, rowdy and abusive behaviour on the part of her sons and visitors, and loud banging and noise as a result of “do it yourself” work in the early hours of the morning. On 10^th January 2002 an order for possession was made against her, suspended for two years on condition that she complied with four of her tenancy conditions which were mentioned on the face of the order, and also on condition that no person residing in or visiting her house caused a nuisance or annoyance to anyone residing, visiting or otherwise engaging in a lawful activity in the locality.

On 11^th November 2002 the council sought permission to apply for a warrant of possession because there had been breaches of the conditions of the suspended possession order. They relied on 13 allegations of nuisance (by loud music and hammering) between 20^th February 2002 and 26^th October 2002. On 7^th January 2003 District Judge Jones made an order permitting the council to issue a warrant of possession on the basis of admissions by Ms Romano that she had committed breaches of the conditions in the suspended possession order. The warrant was issued on 30^th January, and on 14^th February District Judge Jones dismissed Ms Romano’s application to suspend the execution of the warrant. He gave a reserved judgment on each occasion. Ms Romano then appealed to Judge Armitage.

At the hearing on 7^th January District Judge Jones heard oral evidence from Mr Schofield and Ms Perilla (who spent some time in Mr Schofield’s house) on behalf of the council, and from Ms Romano and one of her neighbours, and from Mr Wade, who helped her with DIY work, on behalf of the defence. The district judge preferred the claimants’ evidence, and found 12 of the allegations proved. In particular, he found that on 5^th November 2002 loud music had been emitted from her property, for which she apologised the following day on behalf of her sons. She offered to “cut off all the plugs” in order to appease Mr Schofield. In general, the district judge said that the evidence concerning excessive noise from loud music appeared to be overwhelming.

In his February judgment the district judge said that on the basis of the number of incidents the nuisance from loud music had abated since January 2002, but he had found in January 2003 that there was still a substantial volume of noise coming from Ms Romano’s premises. He was not persuaded that she was able to prevent her children from causing further nuisance from noise, despite her apologies for what had happened in the past. There had been three further matters of complaint since his judgment in January 2003, two of them involving loud noise (most recently at 3.25am one morning).

On this occasion the district judge had received a report from Ms Romano’s GP, Dr Capek, who said she was unable to deliver what she promised, and that she might have outbursts which she did not recall clearly. The district judge was particularly impressed, when deciding to make his order, by Ms Romano’s recent admissions that the earlier allegations about noise that had been made against her were true, and by Dr Capek’s evidence that she was unable to deliver what she promised.

In spite of contrite witness statements from Ms Romano and her two sons, and witness statements from two other neighbours to the effect that they did not find the noise a nuisance, the district judge refused to suspend the execution of the warrant. No point on the 1995 Act was taken before him. We will refer in paragraphs 76-86 below to the medical evidence before Judge Armitage and his approach to that evidence.

Ms Samari: the facts

Ms Samari took a tenancy of premises in Harmer Close, Newton Heath, Manchester in March 2001, and became a secure tenant a year later. She has two children, who were aged 10 and 9 at the date of Judge Armitage’s judgment. In this case, too, it was the next door neighbours who complained to the council about her conduct.

On 11^th June 2002 an injunction was granted against her, effective for one year, prohibiting five distinct types of misconduct directed towards anyone residing, visiting or engaging in lawful activity in the vicinity of her home. On 29^th October, on an application for her committal, she admitted to the court two breaches of this order, but no order was made consequent on these breaches.

On 26^th June 2003 the council served a notice seeking possession on her. It relied on specific incidents in April, May, and August 2002 and in April 2003. It then commenced proceedings for possession, relying on Ground 2 and on breaches of two clauses of her tenancy agreement. In essence the council was relying on a long list of complaints about nuisance and annoyance and harassment of Ms Samari’s next door neighbours.

On 13^th October 2003 Judge Armitage QC conducted the trial of the claim for possession and also a complaint that by her conduct in April 2003 she had again broken the terms of the injunction.

At the hearing the judge received oral evidence from Mr and Mrs Jones (who lived next door) on behalf of the council and from two witnesses on behalf of the defendant. The defendant submitted a recent witness statement: she did not give oral evidence herself.

The judge accepted the evidence of Mr and Mrs Jones. Mrs Jones had made three witness statements describing the matters of which they made complaint, and she also submitted her diary description of one incident. She said that she had become suicidal as a result of the conduct of the defendant and her children. On one occasion she had heard the defendant say that her daughter should be drowned in the canal. Mr Jones said that they had had to remove three of their children from the school which the defendant’s children attended, and that his wife was now unwilling to spend much time at home because of all the problems the defendant was causing and permitting. The judge was satisfied from this evidence that the defendant had been extremely abusive and threatening in her conduct and language to Mr and Mrs Jones and their children. The defendant had even threatened to fight Mrs Jones when she was pregnant.

The judge accepted that Ms Samari’s children behaved well when they were with their grandmother, and that she had friends and allies in the local community. He found, however, that Ms Samari had broken the terms of the injunction on 11 occasions, and that she was in breach of the terms of her tenancy agreement. There had been misconduct amounting to a serious and wearing type of nuisance for a considerable proportion of her tenancy.

Reasonableness and the 1995 Act

In each of these cases the defendant was a secure tenant, and the council had established an entitlement to possession pursuant to grounds 1 and 2 of Schedule 2 of the Housing Act 1985 (“the 1985 Act”). The court, however, might not make an order for possession on either of those grounds unless it considered it reasonable to do so (1985 Act, s 84(2)(a)). It has long been held that this statutory language gives the judge a very wide discretion (Cresswell v Hodge [1951] 2 KB 92). In relation to a tenant’s mental illness, in Croydon LBC v Moody (1998) 31 HLR 738 this court held that a judge had failed to give proper weight to the fact that the defendant suffered from a mental disorder which might be susceptible to treatment, and it set aside an order for possession for this reason.

There is a long line of authority which shows that a very pertinent factor to be taken into account may be a housing authority’s obligations to other tenants on a housing estate and the interests of those other tenants (see, for example, Woking BC v Bistram (1993) 27 HLR 1; Portsmouth City Council v Bryant (2000) 32 HLR 506). In a judgment in the High Court on appeal from the county court in North Devon Homes Ltd v Brazier [2003] EWHC 574 (QB); [2003] HLR 59, however, David Steel J drew attention to the possible effect of the 1995 Act when a judge is considering whether it is reasonable to make an order for possession against a tenant who suffers from a mental impairment. This judgment post-dated the rulings of District Judge Jones in the Romano case, and we were told by very experienced leading counsel that it was the publicity given to this judgement in March 2003 which attracted general attention for the first time to the possible need for a court to take the 1995 Act into account when assessing the reasonableness of making a possession order.

That case was in some respects markedly different from those with which we are now concerned. The defendant was described as a “problem tenant”. She had formerly lived in one of the claimants’ properties in Barnstaple where there were records of disturbed behaviour which disclosed a “chronic state of conflict” with her neighbours. A consultant psychologist considered that she was suffering from a paranoid psychosis. More than 18 months later, following a high level of police and social service involvement occasioned by her bizarre conduct, she was transferred to another of the claimants’ properties in Bursington, where she continued to be disagreeable and aggressive towards her neighbours. She shouted at them, kept them awake at night by banging and shouting, used foul language in front of them, and made rude gestures at them. Eventually the claimants embarked on possession proceedings, and the Recorder considered it reasonable in all the circumstances to make an order for possession. In that case there was not the slightest doubt that she was suffering from a psychotic illness, and on the appeal David Steel J said that the evidence showed that the overwhelming preponderance of her bizarre and unwelcome behaviour was attributable to that illness.

He upheld the judge’s finding that the claimants had failed to justify their conduct in seeking her eviction. There was no evidence that they had considered the step necessary “in order not to endanger the health or safety of any person” (for this statutory test, see para 52 below). Although the judge was satisfied that one neighbour in particular could not tolerate the defendant’s conduct for much longer, he had found that there was no evidence that the defendant had ever been an actual physical risk. Because the eviction was therefore unlawful in terms of the 1995 Act, David Steel J held that it was inappropriate to make an order for possession. The three factors which influenced him were:

(i)

The 1995 Act furnished its own code for justified eviction which required a higher threshold than merely to say that the degree of misbehaviour was significant and there was not much prospect of it abating;

(ii)

Since the eviction was unlawful in terms of the 1995 Act, the court was being invited to exercise its discretion by way of promotion of unlawful conduct;

(iii)

Furthermore, the limitations on interference with the defendant’s right to respect for her home were set out in the 1995 Act and the court’s powers accorded by the Housing Act 1988 had to be read in a manner that was compatible with her Convention rights.

The 1995 Act

Because this is the first occasion on which this court has had to examine the provisions of the 1995 Act in the context of possession proceedings, it is necessary to consider this statutory scheme in some detail.

The first matter a court will have to determine is whether the person who complains about disability discrimination is a “disabled person” within the meaning of the Act. Assistance in this regard is to be found in Part I (sections 1-3) and Schedule 1 of the Act, in the Disability Discrimination (Meaning of Disability) Regulations 1996 (“the 1996 Regulations”), and in the Guidance on matters to be taking into account in determining questions relating to the definition of disability (“the Guidance”) issued by the Secretary of State pursuant to powers conferred by section 3 of the Act: see section 3(3) for the duty of an adjudicating body to take into account any guidance which appears to it to be relevant.

So far as these two appeals are concerned, certain of the provisions of Part I and Schedule 1 of the Act are material. Section 1 provides:

“1.

(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

(2)

In this Act ‘disabled person’ means a person who has a disability.”

The words “physical or mental impairment” are not defined. Paragraph 1(1) of Schedule 1, however, provides that “mental impairment” includes an impairment resulting from or consisting of a mental illness only if the illness is a “clinically well-recognised illness”. Paragraph 1(2) provides that regulations may make provision for conditions of a prescribed description to be treated as amounting to impairments, or as not amounting to impairments, for the purposes of the Act. In this context the 1996 Regulations have prescribed that the following are not to be regarded as “impairments” for the purposes of the Act (see reg 4):

(a)

a tendency to set fires,

(b)

a tendency to steal,

(c)

a tendency to physical or sexual abuse of other persons,

(d)

exhibitionism, and

(e)

voyeurism.

In addition an addiction (which includes a dependency) to alcohol, nicotine or any other substance is to be treated as not amounting to an impairment for the purposes of the Act unless the addiction was originally the result of administration of medically prescribed drugs or other medical treatment (regs 2 and 3).

Schedule 1 contains assistance on the meaning of the phrases “long-term effect” and “effect on his ability to carry out normal day-to-day activities”, which are found in section 1(1). Paragraph 2(1) provides that the effect of an impairment is a long-term effect if:

“(a)

it has lasted at least 12 months;

(b)

the period for which it lasts is likely to be at least 12 months; or

(c)

it is likely to last for the rest of the life of the person affected.”

Paragraph 4(1), for its part, provides that an impairment is to be taken to affect the ability of the person concerned to carry out “normal day-to-day activities” if it affects one of the following:

“(a)

mobility;

(b)

manual dexterity;

(c)

physical co-ordination;

(d)

continence;

(e)

ability to lift, carry or otherwise move everyday objects;

(f)

speech, hearing or eyesight;

(g)

memory or ability to concentrate, learn or understand; or

(h)

perception of the risk of physical danger.”

On the present appeals it was common ground that only items (g) and (h) were of relevance, and that the disability of each appellant, if established, was of long-term effect.

Paragraph 6(1) of Schedule 1 provides that an impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day to day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect. The word “measures” includes “medical treatment”.

The Guidance consists of an introduction, followed by three sections (A-C) which are concerned, respectively, with assistance on the meanings of the words “substantial”, “long term” and “normal day to day activities” and the way in which those charged with interpreting section 1 of the Act should approach the meaning of these concepts in that statutory context. In these appeals, the following parts of the Guidance were drawn to our attention as being of particular relevance:

Introduction

11.

It is not necessary to consider how an impairment was caused, even if the cause is a consequence of a condition which is excluded. For example, liver disease as a result of alcohol dependency would count as an impairment.

13.

Mental impairment includes a wide range of impairments relating to mental functioning, including what are often known as learning disabilities (formerly known as mental handicap). …

14.

A clinically well-recognised illness is a mental illness which is recognised by a respected body of medical opinion. This would include those specifically mentioned in publications such as the World Health Organisation’s Worldwide Classification of Diseases.

Section A

A1. The requirement that an adverse effect be substantial reflects the general understanding of ‘disability’ as a limitation going beyond the normal differences in ability which may exist among people. A ‘substantial’ effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects. A ‘substantial’ effect is one which is more than ‘minor’ or ‘trivial’.

Para A12 refers to paragraph 6 of Schedule 1 (see para 28 above) and explains that its principles are to be applied ‘even if the measures result in the effects being completely under control or not at all apparent’.

Section B

Paragraph B6 relates to much the same matter:

B6. If medical or other treatment is likely to cure an impairment, so that recurrence of its effects would then be unlikely even if there were no further treatment, this should be taken into consideration when looking at the likelihood of recurrence of those effects. However, as Section A describes, if the treatment simply delays or prevents a recurrence, and a recurrence would be likely if the treatment stopped, then the treatment is to be ignored and the effect is to be regarded as likely to recur.

Section C

On these appeals, on the question whether the appellants’ ‘impairments’ had an adverse effect on their ability to carry out normal day-to-day activities, the following parts of this section were said to be of particular relevance:

C5. In many cases an impairment will adversely affect the person’s ability to carry out a range of normal day-to-day activities and it will be obvious that the overall adverse effect is substantial or the effect on at least one normal day-to-day activity is substantial.

C7. Where a person has a mental illness such as depression, account should be taken of whether, although that person has the physical ability to perform a task, he or she is, in practice, unable to sustain an activity over a reasonable period.

C20 and C21 provide guidance on the two elements in Schedule 1, para 4(1) (see para 27 above) which are at the forefront of these appeals.

Memory or ability to concentrate, learn or understand

C20. Account should be taken of the person’s ability to remember, organise his/her thoughts, plan a course of action and carry it out, take in new knowledge, or understand spoken or written instructions. This includes considering whether the person learns to do things significantly more slowly than is normal.

Examples: It would be reasonable to regard as having a substantial adverse effect:

Inability to adapt after a reasonable period to minor change in work routine ..

Perception of the risk of physical danger

C21 This includes both the underestimation and overestimation of physical danger, including danger to well-being. Account should be taken, for example, of whether the person is inclined to neglect basic functions such as eating, drinking, sleeping, keeping warm or personal hygiene; reckless behaviour which puts the person or others at risk; or excessive avoidance behaviour without a good cause.

Mr Luba QC, who appeared for the appellants, relied in particular on the words “reckless behaviour which puts the person or others at risk”.

Reference is also made in some of the cases to the Code of Practice on Rights of Access, Goods, Facilities, Services and Premises (“the Code of Practice”) which was issued in a new form by the DRC with effect from 27^th May 2002. Section 53A of the 1995 Act provides that if a provision of a code of practice appears to a court, tribunal or other body hearing any proceedings under Parts II, III or IV of the Act to be relevant, it must take that provision into account. We will refer to parts of the Code of Practice in paras 53-55 and 57-58 below.

Because the language of the 1995 Act and of the Guidance is so clear, it is not surprising that there has been relatively little caselaw on the meaning of “disability”. In Goodwin v The Patent Office [1999] IRLR 4 the Employment Appeal Tribunal (“EAT”) gave general guidance on the proper approach which employment tribunals should adopt towards issues arising under section 1 of the 1995 Act. Morison J said (at paras 22 and 23):

“22 (2). The tribunal should bear in mind that with social legislation of this kind, a purposive approach to construction should be adopted. The language should be construed in a way which gives effect to the stated or presumed intention of Parliament, but with due regard to the ordinary and natural meaning of the words in question. With this legislation, tribunals are given explicit assistance in two forms, which should detract from the need to adopt a loose construction of the language:

- Guidance issued on 25^th July 1996 under s 3 of the Act by the Secretary of State (Statutory Instrument No 1996/1996) with statutory effect from 31 July 1996; and

- Code of Practice issued on 25 July 1996 but with statutory effect from 2 December 1996.

23.

The EAT repeats what it has said on a previous occasion, namely that, at least during the early period of the Act’s operation, reference should always be made, explicitly, to any relevant provision of the Guidance or Code which has been taken into account in arriving at its Decision.”

In paras 40-42 Morison J said:

“40

On the assumption that the impairment and adverse effect conditions have been fulfilled, the tribunal must consider whether the adverse effect is substantial. This is a word which is potentially ambiguous. ‘Substantial’ might mean ‘very large’ or it might mean ‘more than minor or trivial’. Reference to the Guide shows that the word has been used in the latter sense: see paragraph A1.

41

The tribunal may, where the applicant still claims to be suffering from the same degree of impairment as at the time of the events complained of, take into account how the applicant appears to the tribunal to ‘manage’, although tribunals will be slow to regard a person’s capabilities in the relatively strange adversarial environment as an entirely reliable guide to the level of ability to perform normal day-to-day activities.

42

The tribunal will wish to examine how the applicant’s abilities had actually been affected at the material time, whilst on medication, and then to address their minds to the difficult question as to the effects which they think there would have been but for the medication: the deduced effects. The question is then whether the actual and deduced effects on the applicant’s abilities to carry out normal day-to-day activities is clearly more than trivial”. (Emphasis in the original)

In Power v Panasonic UK Ltd [2003] IRLR 151 an employment tribunal had held that the applicant was not a disabled person within the meaning of the Act because she had an addiction to alcohol which was not to be treated as an impairment (see para 25 above). She also suffered from depression, and the EAT held that the tribunal should have determined whether the depression constituted an impairment within the meaning of the Act without inquiring into its cause. Ms Recorder Slade QC said (at para 12):

“Further, in our judgment, the employment tribunal erred in its approach, as evidenced in the last sentence of paragraph 24 of its decision. It is not material to a decision as to whether a person is suffering a disability within the meaning of the Act, to consider how the impairment from which they are suffering was caused. What is material is to ascertain whether the disability from which they are suffering at the material time is a disability within the meaning of the Act or whether, where it is relevant as in this case, it is an impairment which is excluded by reason of the Regulations from being treated as such a disability.”

This decision was followed by the EAT in Hutchison 3G UK Ltd v Mason (EAT/0369/03) (16^th July 2003), a case concerned with a cocaine addict who suffered from clinical depression. Burton J said (at para 28) that it was plain that there was expert medical evidence before the employment tribunal which had entitled it to conclude that, irrespective of the cocaine addiction, the applicant had a depressive disorder which was sufficiently causative of the absence from work that the dismissal because of such absence from work related to such a disability (emphasis in the original).

In Morgan v Staffordshire University [2002] IRLR 190 the EAT gave guidance on the approach to be adopted in cases where a mental impairment is alleged. After referring to paragraph 1 of Schedule 1 of the Act (see para 25 above) and paragraphs 12-15 of the Guidance (parts of which are set out in para 29 above) Lindsay J said (at para 9):

“Accordingly, in general there will be three or possibly four routes to establishing the existence of ‘mental impairment’ within the [1995 Act], namely:

(i)

proof of a mental illness specifically mentioned as such in the World Health Organisation’s International Classification of Diseases …

(ii)

proof of a mental illness specifically mentioned as such in a publication ‘such as’ that classification, presumably therefore referring to some other classification of very wide professional acceptance;

(iii)

proof by other means of a medical illness recognised by a respected body of medical opinion.”

For the purposes of this judgment it is unnecessary to describe the possible fourth route, which Lindsay J said was likely to be rarely if ever invoked.

Sections 5, 14, 20, 24, 28B and 28S of the 1995 Act are all concerned with explaining the meaning of “discrimination”. Section 5 relates to the employment field, section 14 to discrimination in relation to trade organisations, section 20 to the provision of goods, facilities and services, section 24 to matters relating to premises, and sections 28B and 28S to schools and bodies responsible for further and higher education. Each of these sections contains the same basic definition of “discrimination”, although some of them also contain a secondary definition (which is absent from section 24, the provision at the centre of these appeals), and the justification defence is different in some cases (compare, for instance, section 5(3) with section 24(2)). The basic definition is in these terms:

“For the purposes of [this part/section 22 etc] [an employer/a person] discriminates against a disabled person if –

(a)

For a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply;

(b)

He cannot show that the treatment in question is justified.”

Earlier statutory definitions of “discrimination” appeared in section 1(1) of the Sex Discrimination Act 1975 –

“… a person discriminates against a woman if –

(a)

on the ground of her sex he treats her less favourably than he treats or would treat a man.”

And in section 1(1) of the Race Relations Act 1976 –

“A person discriminates against another … if –

(a)

on racial grounds he treats that other less favourably than he treats or would treat other persons.”

It will be seen that instead of the simple language “on the grounds of her sex” or “on racial grounds” the draftsman of the 1995 Act adopted the phrase “for a reason which relates to the disabled person’s disability”.

In Clark v Novacold [1999] IRLR 318 this court was concerned with the interpretation of the basic definition in a case in the employment field. The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear idea of when it would be possible for him to return to work.

The employment tribunal held that an employee who was absent for such a long time for a non-disablement reason would have been treated no differently in these circumstances, and that there had therefore been no unlawful discrimination on grounds of disability. The EAT agreed with this general approach, holding that the tribunal had correctly adopted the identity of the comparator who was unable to fulfil all the requirements of his job, but whose inability was not related to disability as defined by the job.

This court, however, disagreed. It placed emphasis not so much on the phrase “for a reason which relates to the person’s disability” as on the later phrase “to whom that reason does not or would not apply” (see para 37 above). Mummery LJ (with whom Beldam and Roch LJJ agreed) explained at para 57 how the contrary argument was put:

“A contrary interpretation is submitted on behalf of Mr Clark. His argument is that ‘that reason’ refers only to the first three words of the paragraph – ‘for a reason’. The causal link between the reason for the treatment and the disability is not the reason for the treatment. It is not included in the reason for the treatment. The expression ‘which relates to the disability’ are words added not to identify or amplify the reason, but to specify a link between the reason for the treatment and his disability which enables the disabled person (as opposed to an able-bodied person) to complain of his treatment. That link is irrelevant to the question whether the treatment of the disabled person is for a reason which does not or would not apply to others. On this interpretation, the others to whom ‘that reason’ would not apply are persons who would be capable of carrying out the main functions of their job. Those are the ‘others’ proposed as the proper comparators. This comparison leads to the conclusion that Mr Clark has been treated less favourably; he was dismissed for the reason that he could not perform the main functions of his job, whereas a person capable of performing the main functions of his job would not be dismissed.”

After reminding himself that the statute had to be construed according to its legislative purpose, and saying that the approach of the lower tribunals was a natural one in the historical context of discrimination legislation, Mummery LJ continued (at para 60):

“But, as already indicated, the 1995 Act adopts a significantly different approach to the protection of disabled persons against less favourable treatment in employment. The definition of discrimination in the 1995 Act does not contain an express provision requiring a comparison of the cases of different persons in the same, or not materially different, circumstances. The statutory focus is narrower: it is on the ‘reason’ for the treatment of the disabled employee and the comparison to be made is with the treatment of ‘others to whom that reason does not or would not apply’. The ‘others’ with whom comparison is to be made are not specifically required to be in the same, or not materially different, circumstances: they only have to be persons ‘to whom that reason does not or would not apply’.”

In an earlier part of his judgment (at paras 29-34) Mummery LJ had warned that it might be positively misleading to approach the 1995 Act with assumptions and concepts familiar from experience of the workings of the 1975 Act and the 1976 Act. In this context he mentioned the absence of “the crucial distinction between direct and indirect discrimination on specified grounds”; a justification defence of a type not provided in the earlier Acts; and the failure to replicate

“the express requirement of the 1975 Act (s 5(3)) and the 1976 Act (s 3(4)) that, when a comparison of the cases of persons of different sex or persons of different racial groups falls to be made, the comparison must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

Mummery LJ added (at para 61) a reference to the fact that in section 55 of the 1995 Act (which is concerned with victimisation) there is an express requirement of comparison with the treatment of other persons “whose circumstances are the same”. He then commented (at paras 62-63):

“The result of this approach is that the reason would not apply to others even if their circumstances are different from those of the disabled person. The persons who are performing the main functions of their jobs are ‘others’ to whom the reason for dismissal of the disabled person (ie inability to perform those functions) would not apply.

In the context of the special sense in which ‘discrimination’ is defined in s 5 of the 1995 Act it is more probable that Parliament meant ‘that reason’ to refer only to the facts constituting the reason for the treatment, and not to include within that reason the added requirement of a causal link with disability: that is more properly regarded as the cause of the reason for the treatment than as in itself a reason for the treatment. This interpretation avoids the difficulties which would be encountered in many cases in seeking to identify what the appeal tribunal referred to as ‘the characteristics of the hypothetical comparator’. It would avoid the kind of problems which the English (and Scottish) courts and the tribunals encountered in their futile attempts to find and identify the characteristics of a hypothetical non-pregnant male comparator for a pregnant woman in sex discrimination cases before the decision of the European Court of Justice in Webb v EMO Air Cargo (UK) Ltd : see Webb (No 2) [1995] IRLR 645. This interpretation is also consistent with the emphasis on whether the less favourable treatment of the disabled person is shown to be justified. That defence is not available in cases of direct discrimination under the other discrimination Acts.”

He drew support for this approach from an example provided by the minister who presented the Bill to Parliament, in the context of discrimination in the provision of services. A blind person with a guide dog might be denied access to a café because no dogs are allowed in the café. But the reason why he has a guide dog relates to his disability, and a café owner denying him access would have to provide justification for this policy in his case:

“On the Novacold interpretation of the comparison to be made, the blind person with his guide dog would not be treated less favourably than the relevant comparator, ie ‘others’, to whom that reason would not apply, would be sighted persons who had their dogs with them. There could not therefore be any, let alone prima facie, discrimination. But the Minister specifically stated that this would be a prima facie case of disability discrimination, ie less favourable treatment, unless justified. It could only be a case of less favourable treatment and therefore a prima facie case of discrimination, if the comparators are ‘others’ without dogs: ‘that reason’ for refusing access to refreshment in the cafe would not apply to ‘others’ without dogs.” (para 69)

Mummery LJ continued (at paras 70-71):

“The same point can be made on the example given in the Code of Practice on Rights of Access issued by the Secretary of State at para 2.12:

‘A waiter asks a disabled customer to leave the restaurant because she has difficulty eating as a result of her disability. He serves other customers who have no difficulty eating. The waiter has therefore treated her less favourably than other customers. The treatment was for a reason related to her disability – her difficulty when eating. And the reason for her less favourable treatment did not apply to other customers. If the waiter could not justify the less favourable treatment, he would have discriminated unlawfully.’

It is clear from this example that the comparison to be made is with other diners who have no difficulty in eating and are served by the waiter, and not with other diners who may be asked to leave because they also have difficulty eating, but for a non-disability reason, eg because the food served up by the waiter is disgusting. This interpretation of s 20(1) provides support for Mr Clark’s interpretation of s 5(1). The reason for his dismissal would not apply to others who are able to perform the main functions of their jobs; he has been treated less favourably than those others. He was dismissed for not being able to perform the main functions of his job. The ‘others’ would not be dismissed for that reason.”

During the course of the hearing we discussed with counsel whether it might be possible for the basic definition to be interpreted differently in section 24 of the 1995 Act (where the conduct of a disabled person may impact adversely on the ECHR Article 8 rights of the occupiers of neighbouring premises) as compared with section 5 of the Act (where difficulties of the same intensity may not arise). But since the statutory language is identical, and since Parliament has provided a justification defence which can be invoked to protect neighbours whose health or safety is endangered, we do not consider that it would be appropriate to pursue that possibility any further. We are therefore bound by the decision in Novacold.

Part II of the 1995 Act is entitled “Employment” and Part III “Discrimination in other areas”. Within Part III sections 19-21 are headed “Goods, facilities and services”, and sections 22-24 “Premises”. We are not concerned in these appeals with section 23, which relates to an exemption for small dwellings.

Section 22 is headed “Discrimination in relation to premises”. Sections 22(1) and (2) are concerned with the disposal of premises, an issue that does not arise on these appeals. Section 22(3) protects a disabled person in occupation of premises. It provides that:

“(3)

It is unlawful for a person managing any premises to discriminate against a disabled person occupying those premises –

(a)

in the way he permits the disabled person to make use of any benefits or facilities;

(b)

by refusing or deliberately omitting to permit the disabled person to make use of any benefits or facilities; or

(c)

by evicting the disabled person, or subjecting him to any other detriment.”

An issue arose on these appeals as to whether it was the court, as opposed to the person managing the premises, who performed the act of eviction, but it appeared to be common ground that in deciding to serve a notice seeking possession or to cause a claim for possession to be issued the council was performing one or other of the acts identified in sub-section 22(3)(c). For the meaning of the word “detriment” see Shamoon v Chief Constable of the RUC [2003] IRLR 285, HL.

It follows that if the reason why the council took this course related to the appellants’ disabilities, it would be unlawful unless it could justify its conduct pursuant to section 24(2).

Section 24(1) restates the basic definition of “discrimination” (see para 32 above) “for the purposes of section 22”. The discriminator is described as “A”. Section 24(2) - (5) provide, so far as is material to these appeals, that:

“(2)

For the purposes of this section, treatment is justified only if –

(a)

in A’s opinion, one or more of the conditions mentioned in subsection (3) are satisfied; and

(b)

it is reasonable, in all the circumstances of the case, for him to hold that opinion.

(3)

The conditions are that –

(a)

in any case, the treatment is necessary in order not to endanger the health or safety of any person (which may include that of the disabled person);

…….

(4)

Regulations may make provision, for purposes of this section, as to circumstances in which –

(a)

it is reasonable for a person to hold the opinion mentioned in subsection 2(a);

(b)

it is not reasonable for a person to hold that opinion.

(5)

Regulations may make provision, for purposes of this section, as to circumstances (other than those mentioned in subsection (3)) in which treatment is to be taken to be justified.”

No relevant regulations were drawn to our attention.

Paragraphs 3.11-3.13 of the Code of Practice address the question whether a discriminatory act may be performed even though the relevant service provider did not know that the person in question was disabled. It makes it clear that the answer is “yes”. In para 3.12 recognition is given to the fact that some disabilities are not visible, or that the extent of an impairment may be masked. In para 3.13 this general advice is given:

“3.13

Service providers seeking to avoid discrimination, therefore, should instruct their staff that their obligations under the Act extend to everyone who falls within the definition of ‘disability’ and not just to those who appear to be disabled. They may also decide that it would be prudent to instruct their staff not to attempt to make a fine judgment as to whether a particular individual falls within the statutory definition, but that they should focus instead on meeting the needs of each customer.”

Paragraph 9.26 of the Code of Practice is headed “Eviction”. It states:

“9.26

It is unlawful for a person managing any premises to discriminate against a disabled person occupying those premises by evicting the disabled person. This prohibition does not prevent the eviction of a disabled tenant where the law allows it, for example, where he or she is in arrears of rent or has breached other terms of the tenancy, and where the reason for the eviction is not related to disability. However, in each case, appropriate court action needs to be taken to obtain an eviction order.”

And then this example is given:

“A tenant of a house has recently been diagnosed with AIDS. His landlord gives him a week’s notice to quit the house, although he is not in arrears of rent or otherwise in breach of his tenancy. This is likely to be unlawful.”

However inept the example may be in the eyes of anyone who knows anything about the law relating to residential tenancies, this passage reinforces the conclusion that if the landlord wishes to obtain possession for a breach of tenancy agreement that has been committed for reasons relating to a disabled tenant’s disability, he will have to show that his action is justified on one of the grounds identified in section 24.

In the context of these appeals, the council’s treatment of the two appellants (if they are proved to be disabled persons within the meaning of the Act) would only be justified if in the council’s opinion the treatment (viz the decision to set in motion proceedings for possession) was necessary in order not to endanger the health or safety of any of the people living in the houses next door and it was reasonable, in all the circumstances of the case, for the council to hold that opinion.

It is apparent from the language of section 24(2) that the test is both subjective and objective: (i) Did the council hold the opinion? and (ii) Was it reasonable for it to hold that opinion in all the circumstances of the case? Paragraphs 7.8 and 7.9 of the Code of Practice give clear guidance on the approach to be adopted:

“The general approach to justification

7.8

The test of justification is twofold; what did the service provider believe? (a subjective test) and was that belief reasonably held? (an objective test). A service provider does not have to be an expert on disability, but it should take into account all the circumstances, including any information which is available, any advice which it would be reasonable to seek, and the opinion of the disabled person. … The lawfulness of what a service provider does or fails to do will be judged by what it knew (or could reasonably have known), what it did and why it did it at the time of the alleged discriminatory act.

7.9

In some instances, it will not be clear whether any of the justifications apply. It may be shown subsequently that a service provider was mistaken in its opinion in a particular case. Coming to an incorrect conclusion does not necessarily mean that the service provider has discriminated unlawfully against a disabled person. In such cases, a service provider may be able to justify less favourable treatment or failure to make reasonable adjustments if it can show that it was reasonable, in all the circumstances of the case, for it to hold that opinion at the time.”

Paragraphs 7.11 and 7.12 of the Code of Practice address the question of a justification based on health or safety grounds, but they confine their treatment of this topic to questions relating to the disabled person’s own health or safety and not, as in these two cases, to questions relating to the health or safety of other people.

In the Scottish case of Rose v Bouchet [1999] IRLR 463 Sheriff Principal Nicholson explained (at paras 32-36) how the test required by section 24(2) should be operated in practice. In particular, when he considered the need for the alleged discriminator to show that it was reasonable in all the circumstances of the case for him to hold the opinion in question, he said (at paras 34-37):

“34

… In my opinion, that part of the test requires an objective assessment of all the relevant circumstances. But that, of course, raises a question as to what circumstances are relevant for this purpose; and in particular it raises the question of whether a person in the defender’s position is under some sort of obligation to make inquiries of a disabled person before forming any opinion.

35

In considering this aspect of the case, it may be helpful at the outset to make clear that ‘the relevant circumstances’ do not extend to include all of the facts which may be established at a much later stage, for example during proof in a litigation. Counsel for the pursuer did not suggest that the reasonableness of an opinion should be tested, ex post facto as it were, by objective reference to all of the facts which might come to light at a later stage, and I am of opinion that counsel was correct to adopt that position. However, as I have noted earlier, he founded strongly on the submission that the defender should have engaged in dialogue with the pursuer so as to obtain more relevant facts than were immediately available to him. The submission bore, of course, to be founded on the Code of Practice, and in particular on the passage which I have already quoted from paragraph 1.7.

36

In my opinion, counsel’s submission on this point is crucial if the pursuer is to succeed because, like the sheriff, I consider that the opinion reached by the defender, on the facts as then known to him, was a reasonable one for him to reach. …

37

The question then is whether the defender should have endeavoured to obtain more information before finalising his opinion. The Act itself does not impose any such duty, but I accept that the Code contains a suggestion that some inquiry may be desirable. In my opinion, however, the need for further inquiry will depend very much on the facts and circumstances of a particular case. …”

Mr Arden QC, who appeared for the council, suggested that the sheriff principal was wrong when he held that the reasonableness of the alleged discriminator’s opinion had to be tested by reference to the facts known to him at the time he embarked on the alleged discriminatory treatment. We reject that submission. The language of section 24(2) (“treatment is justified if, in A’s opinion, one … of the conditions … [is] satisfied”) compels one to adopt the sheriff principal’s construction, and does not admit of justification after the event. Needless to say, if the situation contained features that A did not appreciate at the time, and the court was satisfied that he had made sufficient inquiry, his opinion may be objectively justified but the court might subsequently consider that it was not reasonable to make a possession order because circumstances had changed or because there were other relevant features of the situation that could not reasonably have been known by A at the relevant time which fell to be weighed in the balance at the time of the hearing.

Section 25 of the 1995 Act provides, so far as is material, that:

“(1)

A claim by any person that another person –

(a)

has discriminated against him in a way which is unlawful under this Part …

may be made the subject of civil proceedings in the same way as any other claim in tort …

(2)

For the avoidance of doubt it is hereby declared that damages in respect of discrimination in a way which is unlawful under this Part may include compensation for injury to feelings whether or not they include compensation under any other head.

(3)

Proceedings in England and Wales shall be brought only in a county court.

…

(5)

The remedies available in such proceedings are those which are available in the High Court …”

Schedule 3, para 5(1) provides that:

“5

(1) Except as provided by section 25 no civil or criminal proceedings may be brought against any person in respect of an act merely because the act is unlawful under Part III.

(2)

Sub-paragraph (1) does not prevent the making of an application for judicial review.”

It will be evident that the 1995 Act does not explicitly provide a defence for a disabled person who wishes to assert that the reason why his landlord brought possession proceedings related to his disability. On the other hand, it is open to him to counterclaim for a declaration that he has been unlawfully discriminated against and/or to counterclaim for injunctive relief. Furthermore, as David Steel J observed in the Brazier case, if the tenant can prove that the landlord’s conduct amounts to unlawful discrimination, this is bound to be a relevant factor when the court is determining whether it is reasonable to make an order for possession.

In our judgment, it would be preferable, in a case involving a secure tenancy or an assured tenancy, for the tenant to assert the matter on which he relies as part of his case that it would be unreasonable for the court to make a possession order, rather than to complicate the proceedings by adding a formalistic counterclaim for a declaration or an injunction.

The relationship between the 1995 Act and the housing legislation

Mr Arden made the bold submission that because no changes were made to the Housing Acts when sections 22-24 of the 1995 Act were added to that legislation during the course of its Parliamentary passage, Parliament must have intended that the statutory schemes whereby a landlord recovered possession of his premises should remain unaffected by these provisions of the 1995 Act. At a time when Parliament has been introducing more and more remedies for anti-social behaviour, social landlords have been placed, he said, in an extremely difficult position as a result of the judgment in Brazier. On the one hand they are bound (and wish) to tackle anti-social behaviour. On the other hand they are bound (and wish) to offer as much protection and support as possible to those with mental health problems.

In paragraph 3 of his judgment in Novacold Mummery LJ suggested that anyone who thought that there was an easy way of achieving a sensible, workable and fair balance between the competing interests in the employment market when issues of disability discrimination fall to be considered had probably not given much serious thought to the problem. The complexities introduced into the social landlord’s task by this legislation (on the assumption that Brazier was correctly decided) were illuminated by Mr Arden’s submissions and by the evidence which the court permitted the DRC to adduce.

Like much policy-driven modern legislation which has not been subjected to rigorous scrutiny of the type customarily undertaken by the Law Commission, there are evident difficulties in sections 22 and 24 of this legislation which call for remedy at an early date. One difficulty lies in the fact that these sections are not confined to residential tenancies, so that a business tenant might invoke the Act if he asserts that the reason he has broken the conditions of his lease relates to his mental disability. A further difficulty arises from the fact that a tenant could assert that his landlord could not recover possession for non-payment of rent because the reason why he could not manage his financial affairs efficiently relates to his mental disability. Another difficulty lies in the fact that a private landlord who does not have to establish a “reasonableness” ground for possession may nevertheless be confronted by an assertion that he has caused detriment to a disabled tenant by selecting him for eviction.

Unless Parliament takes rapid remedial action – and regulations made under section 24(5) of the Act (see para 52 above) might provide a convenient route to a satisfactory remedy – the courts may be confronted with a deluge of cases in which disabled tenants are resisting possession proceedings by these and other similar means. These considerations, however, should not compel us to conclude that in the areas with which we are concerned on these appeals Parliament must be understood to have taken the stance suggested by Mr Arden. For many years the county courts have had to take the health of both landlord and tenant into consideration when determining whether it is reasonable to make an order for possession (see Cresswell v Hodgson [1951] 2 KB 92, per Singleton LJ at p 97). All that the 1995 Act has done is to state that if a tenant is disabled and the reason why the landlord is seeking possession relates to the tenant’s disability, then the landlord must believe that he is justified in taking this action on section 24(3) grounds and his justification must be objectively reasonable.

In the present appeals, the council must prove that if it did not take this action someone’s health or safety would be endangered. It does not have to prove that that person’s health or safety has actually been damaged. The World Health Organisation has since 1948 adopted the following definition of the word “health”:

“Health is a state of complete physical, mental and social well-being and not merely the absence of disease and infirmity”.

If health is endangered, that state is put at risk. The statute does not use the words “seriously endangered”, and when interpreting the 1995 Act compatibly with the European Convention on Human Rights, it is necessary to bear in mind not only the Convention rights of the disabled person but also the Convention rights of his neighbours. It may be useful in this context to compare the evidence given by Mr Schofield, the owner-occupier of the house next door to Ms Romano, with the approach of the Grand Chamber of the European Court of Human Rights (“ECtHR”) in Hatton v United Kingdom [2003] 37 EHRR 28.

Mr Schofield works as a driving examiner. No statement earlier than 23^rd November 2002 is with the court’s papers, but the long history of nuisance from noise is evident from paragraphs 6 and 7 of this judgment. District Judge Jones heard him give evidence. In his February 2003 judgment he said that no doubt there were times when Mr Schofield’s occupation was stressful and that he had reached the end of his tether. He added that the effect of the nuisance on Mr Schofield, as described in his various witness statements, was self-evident. Paragraph 6 of his final witness statement, in which he records a very high volume of noise which woke him up at 3.25am, is in these terms:

“These incidents have been continuous over the last few years … I am going to work tired because my sleep has been disturbed. This makes my work difficult as I have explained. I am a Driving Examiner and need to be fully aware of what is going on around me … I have been to the courts to obtain some peace and rest … The stress this has caused me in my marriage and in my work is unmeasurable. These latest incidents have taken place since the last court hearing which makes me wonder what exactly does one have to do or where does one go from here.”

In his statement dated 23^rd November 2002 he described the noise nuisance on Bonfire Night which continued until 12.32am. He said he woke feeling really tired at 6am. He had told Ms Romano that morning that he was working and that five hours sleep was not enough.

In Hatton v United Kingdom the ECtHR said (at para 96) that severe environmental pollution might prevent individuals from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health. In other words, their Article 8(1) rights would be infringed in these circumstances.

In the later case of Ashworth v United Kingdom, 20^th January 2004, Application No 39561/98, the ECtHR said that the responsibility of the state may be engaged where an applicant is directly and seriously affected by noise pollution, even where the nuisance emanated from the activities of private individuals.

In our judgment, section 3 of the Human Rights Act 1998 constrains the court to interpret section 24(3)(a) of the 1995 Act in the following way. The court should ask:

(1)

Did the landlord hold the opinion that it was necessary to serve a notice seeking possession and/or to bring possession proceedings in order that the health of A (an identified person or persons) would not be put at risk?

(2)

Was that opinion objectively justified?

For the meaning of the word “health” in this context see paragraph 69 above. Trivial risks to a person’s health should be disregarded.

Ms Romano

Ms Romano’s lawyers placed no medical evidence before the court in January 2002 (when the suspended order for possession was made) or in January 2003 (when the council was granted permission to cause a warrant of possession to be issued). For the hearing on 14^th February, when the district judge refused to stay the execution of the warrant, a very full report by her GP, Dr Capek, was placed before the court (see para 9 above).

Dr Capek said that since Ms Romano had joined his medical practice in December 1999 she had never been fully free from a depressive illness. She had also described certain features which suggested that at a time her illness had become psychotic. In July 2001 she was referred to the community mental health team, but her follow-up had been poor. Her motivation to help herself was poor, and she did not take her medication regularly.

For the purposes of the appeal to Judge Armitage, her lawyers obtained a number of reports from Dr Bhatt, who is a senior house officer in psychology at her local hospital. He recorded that Ms Romano had suffered from depression since 1993 and had been treated by her GP with anti-depressants since 1998. Although she was seen for a period of time by the community mental health team in 2001, her attendance at an outpatient clinic had been erratic, and she had not been seen by the psychiatrist there since February 2002. On 14^th April 2003 she saw Dr Bhatt, who said she presented with lowness in mood since November 2002. Dr Bhatt described the new treatment plan he had devised.

On examination of her mental state, Dr Bhatt found that she was fully orientated to time, place and person. Her long-term memory was intact, but she had some mild impairment of her short-term memory. She had good insight into her condition, and she knew her diagnosis was depression. She had been spending £20 a week on cannabis, but was not dependent on it.

Dr Bhatt had access to two earlier reports on her condition in 2001. His conclusion was expressed in these terms:

“This 38 year old lady has been suffering from depression of mood associated with suicidal thoughts, auditory pseudo hallucinations, persecutory ideas, poor appetite, weight loss, lassitude, difficulty getting off to sleep, early morning wakening, poor concentration and memory. This constellation of symptoms represents a moderate to severe depressive episode in keeping with the World Health Organisation (WHO, 1992) and American Psychiatric Association (APA, 1994) guidelines. She has had previous episodes of depression and therefore satisfies the criteria for a diagnosis of a Recurrent Depressive Disorder. In this setting of depressed and irritable mood she has misinterpreted other people’s intentions and behaved in a hostile manner.”

He concluded that she was suffering from a recurrent depressive disorder, of a type recognised by the ICD-10 and DSM IV classifications of mental disease.

In a further short report dated 27^th June 2003 Dr Bhatt said that he felt that Ms Romano could carry out her normal day to day activities (eg shopping, cooking, cleaning and budgeting) but her depressive disorder made these tasks very difficult. Because her depressive illness predated the allegation in these proceedings, he felt that her disability had affected her normal day to day activities throughout the relevant period. Irritability of mood (a well recognised feature of depression) and paranoid ideation (a common component of cannabis misuse) had contributed to her misinterpreting other people’s intentions and had caused her to behave in a hostile and anti-social manner.

On 21^st July 2003 Dr Bhatt answered a number of questions focused on the effect of the 1995 Act. He said that Ms Romano’s recurrent depressive disorder had affected her short term memory by interfering with her ability to concentrate and learn new information. When her illness was severe it could have a significant effect on her normal day to day activities, but at times when her depressive symptoms were relatively stable it could have a minor effect.

Dr Bhatt considered that her disorder played no part in the playing of loud music or noisy DIY activities in her property. The reference to hostile behaviour related to the incident in April 2001 (see para 5 above). He said that her irritability might have caused her to behave in an anti-social manner, for example by performing DIY. He said that it appeared from the evidence that the majority of the complaints of nuisance behaviour had been caused by her two sons whilst she was out of the house, although her anti-social behaviour at odd hours could be attributable to her impaired judgment in the context of her depressive illness.

The council’s solicitors instructed Dr Robins, a locum consultant psychiatrist, to prepare a report at short notice in July 2003. Dr Robins did not have access to any of Ms Romano’s medical notes, apart from two psychiatric reports prepared in 2001, or to Dr Bhatt’s reports. She was dependent to a great extent on what she gleaned from her examination of Ms Romano on 18^th July 2003 and on the contents of the statements by Ms Romano and her two sons. Dr Robins saw her five months after the district judge had refused to suspend the execution of the warrant of possession. She was currently showing features of an adjustment disorder with mixed anxiety and depression reaction, and Dr Robins considered that the relevant “stressful life event” related to difficulties with her neighbours and the Eviction Order.

Dr Robins said that an adjustment disorder with prolonged depressive and anxiety features was a clinically recognised illness. She considered that Ms Romano’s mental impairment had a significant effect on her ability to carry out normal day to day activities: in this context she relied on what Ms Romano had told her about her life-style since receiving the “Eviction order” (sic) in November 2001. Dr Robins said that there was a possibility that her disability might have given rise to some of the nuisances detailed in the enclosures to two reports written during 2001. It was clear, on the other hand, that her mental impairment could not play any part in loud music by her sons or DIY activities by her friends.

After summarising the effect of this evidence the judge concluded that there was ample evidence that Ms Romano had a well recognised mental illness. This amounted, he assumed, to a mental impairment within the meaning of the 1995 Act. He added that there was evidence that Mr Romano’s mild impairment of short term memory resulted, in an unquantifiable way, from the illness and cannabis use, and that this condition had persisted for at least 12 months. He said, however, that it was clear to him that the expert evidence, at its highest, pointed to only slight or marginal effects, if any, of the illness, on Schedule 1 activities. He was therefore satisfied that the mental impairment which had been diagnosed did not have a substantial effect on her ability to carry out any of the day to day activities set out in paragraph 4(1) of Schedule 1 (see para 27 above) and that Ms Romano did not therefore have a disability for the purpose of Section 1(1).

Mr Luba argued that the psychiatric evidence clearly showed that Ms Romano’s depressive disorder affected her short-term memory by interfering with her ability to concentrate and learn new information, and that her impairment affected her activities such as “self-care”. He said that an ability to concentrate and to learn includes an ability to learn what is or is not appropriate behaviour; and that “self-care” includes an ability to understand and conform to appropriate behaviour so as to avoid causing such nuisance to others as might lead to one’s eviction from one’s home.

He added that the judge ought not to have substituted his own findings on issues calling for psychiatric expertise for the findings of the expert witnesses. The judge had also been wrong to adopt a literal interpretation of the words “substantial effect”. If he had adopted a purposive approach to the construction of the statute he would have been bound to find that Ms Romano’s impairment had a substantial and long term effect on her carrying out of day-to-day activities. He ought to have found that her disability was the cause of, or a contributing factor in, the behaviour which formed the basis for inviting the court to refuse to suspend the warrant of possession.

Mr Arden, for his part, submitted that the court should be slow to interfere with the judge’s decision on a question of fact. The judge had been entitled to take the view that the expert witnesses had not focussed their minds on the legal issues he had to determine. Their reports did not specify clearly which of Ms Romano’s Schedule 1 activities were substantially affected by her disability. Dr Robins’s passing reference to “poor concentration” did not advance matters very far in the middle of a list of activities which had no other obvious connection with Schedule 1 activities, and Dr Bhatt answered questions relating to “day to day activities” without reference to the exclusive definition contained in paragraph 4 of Schedule 1 to the Act. This had been the judge’s view, and Mr Arden argued that he was entitled to hold it and to conclude that Ms Romano’s impairment did not have a substantial effect on her ability to carry out day to day activities by reference to the list in that schedule.

In any event, the matters that were being complained of during 2002 and early 2003 which had led to the district judge making the order under appeal arose out of the noisy DIY activities and also the loud music in which Ms Romano’s sons indulged. Neither psychiatrist had been able to find any connection between these activities and Ms Romano’s mental impairment (see paras 83 and 85 above), and in those circumstances Mr Arden submitted that she had not been treated less favourably for a “reason which relates to her disability”.

The introduction of arguments based on the 1995 Act (which were supported by new expert evidence but no other new evidence) at the first appeal stage in Ms Romano’s case raises formidable difficulties for this court as a second appeal court. Under the CPR procedural scheme primacy is accorded to the trial court, and although the Act was on the statute-book no point on it was taken when the suspended possession order was made in January 2002, or when permission was granted in January 2003 for the issue of the warrant of possession, or when Ms Romano’s application for the suspension of the execution of the warrant was dismissed in February 2003.

In those circumstances none of the witnesses before the district judge in January and February 2003 had been invited to turn their minds to issues that might arise from sections 22 and 24 of the 1995 Act, and he did not make any findings on any such issues. When medical evidence was sought from Dr Bhatt and Dr Robins during 2003 the trial process was over and those two experts were not focusing their minds clearly on what should have been the central issues in the case, namely, how exactly it could be said that Ms Romano’s undoubted mental impairment had had a substantial effect on her memory or on her ability to concentrate, learn or understand, and in any event how, if at all, the noisy activities involving loud music and hammering had been causally connected with that impairment.

We have no difficulty in concluding that the appeal should be dismissed because Mr Schofield’s evidence (summarised in paras 71 and 72 above) would have led properly to a conclusion that his health was endangered (in the sense we have explained in paras 60-70 and 75 above) by his frequent loss of sleep, and that if a section 22 point had been taken so that the council’s opinion to this effect had been tested at the trial stage, it would have been held to have been objectively reasonable. On the present state of the medical evidence, moreover, it would have been difficult to relate the loud hammering and music (which were the only matters complained of in connection with the last two stages of these proceedings before the district judge) to Ms Romano’s mental impairment. The single allegation of violent behaviour which predated the making of the possession order formed no part of the evidence for the district judge to consider in January or February 2003.

In these circumstances it is not really necessary to address the more difficult question as to whether the judge was wrong when he concluded that, speaking generally, Ms Romano was not a disabled person within the meaning of the Act. We have a strong suspicion that if one or other or both of the expert witnesses had attended court and if the uncertainty arising from their written evidence had been explored with them, the judge would have been able to conclude confidently that her mental disability did have the characteristics identified in section 1(1) of the Act as explained by paragraph 4(1)(g) of Schedule 1, but in the present unsatisfactory state of the evidence it is unnecessary to go further than this. The judge was certainly entitled, indeed bound, to satisfy himself that the medical evidence satisfied the statutory criteria, and if he considered it did not, he was both entitled and bound to say so.

Ms Samari

Professor McWilliam, who is a consultant psychiatrist, furnished three reports in this case. The first was a joint report dated 14^th October 2002. He said Ms Samari was suffering from a personality disorder which fell within the DSM IV criteria for borderline personality disorder. Her chaotic lifestyle, interacting with her personality disorder, produced violent behaviour, depression and anxiety. He felt that most of her symptoms would gradually disappear if her social circumstances stabilised, and her personality disorder should cause less problems with time. He did not think that she was an active risk to others although she could be abusive when stressed.

Professor McWilliam examined Ms Samari again in May 2003, and wrote his second report at the request of her solicitors on 11^th June 2003. There had been no significant change in her condition. He considered that her ongoing symptoms of depression and anxiety represented her reaction to adverse social circumstances, but her tendency to aggressive behaviour pertained more to her underlying personality problems than to a mental illness per se. She was competent in managing her affairs and could understand the terms of an injunction order.

Professor McWilliam’s third report, dated 27^th July 2003, recorded his opinion that Ms Samari was suffering a mental impairment which had a substantial and long term effect on her ability to carry out normal day to day activities within the meaning of the 1995 Act. He explained that she was suffering from a constitutional disorder of long duration with antecedents in childhood and adolescence. In her case, paragraphs 4(1)(g) and (h) of Schedule 1 to the Act (see para 27 above) were of relevance. Her disorder impaired her ability to learn to cope with stressful situations and to react appropriately. Her perception of risk of physical danger was shown by her impulsive acts when she would put herself and others at risk, for example when taking an overdose or when physically attacking others. Her impulsivity prevented her from moderating her actions even if she was fully aware of the possible consequences.

On 23^rd August 2003 Professor McWilliam gave written answers to a number of questions that had been put to him. To a great extent his answers took matters little further. However, when he was asked to express his views on Ms Samari’s alleged behaviour on several occasions in April 2003, he said that if the allegations were true they provided the court with a very good illustration of the effects of the borderline personality disorder on her social interactions with others, especially those whose behaviour she perceived to be threatening to herself.

The judge analysed the effect of the professor’s evidence without being referred to the Guidance or the Code of Practice. He accepted that Ms Samari was suffering from a well recognised disorder which qualified as a mental impairment and that it was a long-term condition for the purpose of paragraph 2(1) of Schedule 1 (see para 26 above). He went on, however, to analyse the effect of her condition on the two aspects of her day to day activities considered by Professor McWilliam.

He was unwilling to accept that the evidence disclosed any inability to learn or understand. He felt that because there was no evidence of a general learning impairment, the fact that Ms Samari did not react appropriately to particular circumstances did not mean that she had not learned what was generally acceptable behaviour. Professor McWilliam considered that her reaction to events was dictated by her personality disorder and not by any failure to comprehend the need for restraint in the face of adversity. The judge analysed what she had told the professor and concluded that she knew what the consequences of her conduct were and tried to avoid them. The professor had concluded that the impulsivity arising from her condition at times overrode her ability to make rational “on the spot” decisions when she was stressed, and acute behavioural problems then resulted. Her conduct was triggered by “blind rage” which affects almost every person’s memory and not by any memory deficit connected with her mental impairment.

Mr Luba argued that the judge should have held that an “ability to learn or understand” includes an ability to learn or understand what is, or is not, appropriate behaviour in any given situation. Someone who had difficulties in understanding normal social interaction amongst people could properly be regarded as having their understanding affected. He said that the judge took an unduly restrictive approach to the concepts of understanding and learning. On the para 4(1)(h) point (see paras 27 and 97 above) the professor had expressed his expert opinion and the judge had not been at liberty to reject it, as he lacked the professor’s specialist expertise.

Mr Arden, for his part, submitted that the judge was properly entitled to reach his own conclusions on the effect of Ms Samari’s own statement. In this context the judge had quoted part of this extract from her final statement:

“I can feel when a mental health episode comes on and I know that when I do have an episode I can get very violent. Sometimes I cannot recall what I have done during the episode and the episodes scare me and I try to keep myself to myself because I know what I can do. Such an episode generally starts with having bad thoughts, feeling panicky and feeling angry. I am trying very hard to combat my mental health which includes taking medication but I try and keep myself to myself because I know that if an episode occurs there is very little I can do to stop it from happening.”

Mr Arden said that the judge was entitled to consider that Professor McWilliam had adopted an artificial application of a single element of para 4(1)(g) and that since he had referred to Ms Samari’s witness statement when questioned about his opinion the judge was entitled to form his own view on the meaning and effect of that statement. On the totality of the evidence the judge was also entitled to conclude that Ms Samari’s perception of risk of physical danger (para 4(1)(h)) was unimpaired. In particular, after he had read that Ms Samari had often contemplated self-harm but said she would not do anything because of her children, the judge had been entitled to consider that this was some evidence that Ms Samari was able to assess the risks and to balance the consequences of a particular highly emotionally charged decision.

We do not consider that the judge’s approach was wrong in relation to para 4(1)(h): the attempt to force the facts of this case into that particular straitjacket always appeared to us a bit forced. We part company with him on para 4(1)(g), however, and since neither Ms Samari nor Professor McWilliam appeared in the witness-box this court is in just as good a position as the judge to appraise the effect of their evidence. If by reason of her illness Ms Samari was unable to learn how to learn how to cope with stressful situations and to react appropriately, this would bring her within the ambit of para 4(1)(g) and the judge received no evidence to contrary effect. Although the ultimate decision is for the court, not the expert (see Abadeh v British Telecommunications plc [2001] ICR 156, para 10) the evidence on this issue was really all one way.

We have summarised the judge’s findings about Ms Samari’s anti-social behaviour in paragraphs 11 to 17 above. He said (in para 19 of his judgment) that Mr and Mrs Jones were truthful and reasonably accurate witnesses when they were speaking about the effect Ms Samari’s conduct had on them. In a witness statement dated 18^th June 2003 Mrs Jones said:

“I am at the end of my tether and I feel that I can no longer cope with the behaviour of the defendant and her family. I am sick of my children having to listen to their abusive language. The comments that the defendant makes to my family and myself are very insulting and hurtful. I feel very vulnerable and worried for the safety of my family and myself.”

When she gave evidence at the trial, Mrs Jones said that Ms Samari’s behaviour had affected her a great deal in recent months. She was on anti-depressants now because of it. The last eight months (February to October 2003) had been “really, really bad” for her. The whole situation had really made her suicidal. She could not go out of her house without being called names. This evidence was not challenged. Mr Jones confirmed in cross-examination that his wife was being treated for depression. She had her prescription with her. Counsel for Ms Samari chose not to pursue this issue.

Ms Samari’s amended defence averred that “the claimant cannot justify the eviction because the eviction is not necessary in order not to endanger the health or safety of any person”. In the course of his final submissions counsel for Ms Samari developed the point that the council had to show that it had formed the requisite belief when it determined to pursue the proceedings. The judge then allowed the council to call the requisite evidence from a witness who was present in court. This was Miss Bryant, the council’s nuisance response officer.

Miss Bryant produced a nuisance case information update sheet dated 10^th September 2003. This record addressed the justification for the council continuing with the application for possession. After recording the effect of Professor McWilliam’s latest report, the paper continued:

“…[T]he complainant … is suffering from serious depression which she is now on medication for. [Her] depression is a direct result of the behaviour of Yvonne Samari. As the landlord’s representative I have considered the health and safety of Sharon Jones and believe it is justified for legal action to continue.”

Miss Bryant explained the nature of her duties. Once all the relevant evidence had been collected, it was her duty to decide what action to initiate. After the Brazier case, the council had decided how they would proceed with justifying their actions in this case. She had spoken to Mrs Jones on the phone and was told that her serious depression had started when she began to have problems with Ms Samari. She was in possession of Mrs Jones’s prescription for anti-depressants, and if she had known that evidence from a GP was required, she would have obtained it.

An application was then made by Ms Samari’s counsel that Mrs Jones should be recalled. She was no longer at court, and the judge refused to adjourn the case so that she could attend. It is evident from the transcript that he considered that unless it was being suggested that Mrs Jones had misled the court – and she had not been challenged when she gave evidence about the cause of her depression – there was nothing to be gained by recalling her. The issues he had to decide were whether her health and safety had been endangered and whether the council’s opinion was reasonable, and it did not matter if nobody had actually been made ill.

In our judgment the judge’s two decisions – to allow Miss Bryant to be called and to refuse to require Mrs Jones to be recalled – were well within the wide ambit of his discretion as the trial judge and we would not interfere with his judgment on the grounds of procedural irregularity. We are also unimpressed by Mr Luba’s argument that Miss Bryant’s evidence did not go back to the initiation of the possession process. It is perfectly obvious that if the council had decided in September 2003 that it could not justify the continuation of the proceedings they would have been abandoned at that stage.

In these circumstances the judge was entitled to conclude as he did on the evidence that the council held the opinion that the continuation of eviction proceedings was justified in order not to endanger Mrs Jones’s health and that it was reasonable in all the circumstances of the case for the council to hold that opinion. Given that Mrs Jones’s evidence about the effect of Ms Samari’s conduct on her health was not challenged in cross-examination, we are unimpressed by the suggestion that the council should have adduced independent medical evidence on the issue.

We are also unimpressed by the contention that there was no evidence that the council held the requisite opinion when it served the notice seeking possession in June 2003. Even if technically this might have constituted an act of unlawful discrimination, it is perfectly obvious that once the council had absorbed the effect of the judgment in Brazier, it carefully considered its position in September 2003, and the order for possession would not have been sought at the hearing in October but for the opinion it formed then. In other words, while the act of unlawful discrimination in June might technically have given rise to a complaint justiciable under section 25 of the Act (see para 61 above), if made timeously, it could not have provided a substantive defence at the hearing because the 1995 Act did not in itself invalidate the notice seeking possession. The law would get itself in a hopelessly technical tangle if any other conclusion on this contention was to be reached.

It follows that in our judgment the council was justified in seeking a possession order at the hearing, and this appeal, too, must be dismissed.

Concluding comments

Our attention was drawn to the fact that this judgment is of particular contemporary importance because by virtue of section 218A of the Housing Act 1996 (as inserted by section 12 of the Anti-Social Behaviour Act 2003) every local housing authority, housing action trust and registered social landlord must with effect from 1^st July 2004 prepare a policy in relation to anti-social behaviour and also procedures for dealing with occurrences of anti-social behaviour, and they must also no later than 31^st December 2003 publish a statement of their policy and procedures (see section 218A(1)–(3)). In preparing their policy and procedures such landlords must have regard to guidance issued in accordance with section 218(7). In the case of a local housing authority the Secretary of State is to issue the requisite guidance.

We have already referred (in paras 67-68 above) to certain apparent difficulties in the statutory scheme contained in sections 22 and 24 of the 1995 Act. Other difficulties might arise from the fact that if a landlord obtains an injunction restraining a mentally disabled tenant from anti-social behaviour it will not be able to enforce that injunction by committal proceedings unless it can establish to the criminal standard of proof that it held an opinion on one of the matters specified in section 24(3) of the Act and that it was reasonable in all the circumstances of the case for it to hold that opinion. Simply by way of example, if complaints by a former council tenant of robust temperament who has bought his property under the “right to buy” scheme have induced the local housing authority to seek and obtain an injunction against his neighbour in the council house next door restraining his anti-social behaviour, the council as the person managing the tenant’s premises may not subsequently embark on enforcement proceedings unless it can establish statutory justification to the requisite standard of proof. In other words the owner-occupier whose health or safety is not endangered by his next door neighbour’s breach of a court order will have to watch the value of his property deteriorating because the injunction cannot in these circumstances be enforced by the neighbour’s landlord through the courts.

This judgment shows that landlords whose tenants hold secure or assured tenancies must consider the position carefully before they decide to serve a notice seeking possession or to embark on possession proceedings against a tenant who is or might be mentally impaired. This is likely to compel a local housing authority to liaise more closely with the local social services authority at an earlier stage of their consideration of a problem that might lead to an eviction than appears to be the case with many authorities, to judge from some of the papers the DRC placed before the court. To remove someone from their home may be a traumatic thing to do in the case of many who are not mentally impaired. It may be even more traumatic for the mentally impaired.

To send a warning letter to a tenant about his conduct is not to subject him to a detriment within the meaning of the Act, but it may well be that at such a stage it might be wise for a local housing authority to start considering whether it would be able in due course to hold in good faith an opinion of one of the kinds mentioned in section 24(3) of the Act and to set about obtaining the necessary evidence for that purpose. Such evidence will not simply involve obtaining evidence about the mental condition of the tenant. If the council believes that the tenant suffers or may be suffering from a mental impairment of the type described in section 1 of the Act (see para 24 above and the succeeding paragraphs), then it will be prudent for it to obtain evidence of the effect of the tenant’s behaviour on the health or safety of one or more of the complainants (for which see paragraphs 60-75 of the Act) if section 24(3)(a) of the Act is to be relied upon. In the first instance a statement by that complainant supported by a short letter from the complainant’s GP or other medical adviser is likely to suffice. The importance of taking these steps in a careful manner is buttressed by research evidence which shows the significant proportion of sufferers with mental health problems among those who are guilty of anti-social behaviour. Paragraph 53 of this judgment draws attention to the fact that a landlord may perform a discriminatory act even if it does not know that the person in question is disabled: hence the need for a careful appraisal.

In this judgment we have been concerned only with issues affecting secure or assured tenants, where a court is obliged to consider the reasonableness of making a possession order or where a court has a discretion to exercise in deciding whether a possession order should be enforced. We have not been concerned with the more formidable interpretive difficulties that may relate to the treatment of other tenants which may lead to an eviction or to the enforcement of injunctions obtained against tenants suffering from mental impairment, but those who are concerned with the difficulties presented by this legislation may care to give urgent consideration to what we have said in paras 67-68 and 116 of this judgment.

Needless to say, if expert medical evidence is to be sought in a case of this type, it is essential for the expert’s attention to be drawn to the specific issues that need to be addressed on the facts of the particular case. The story of the evidence furnished in the Romano case bears vivid testimony to the problems that may arise if this is not done.

One final word. We wish to emphasise again what we said in paragraphs 67 and 68, namely that Parliament ought to review this legislation at an early date. That it can lead to absurd and unfair consequences as it stands may be illustrated by one further example, taken from another topic within Part III of the 1995 Act. The Code of Practice issued by the DRC, under the heading “Must a service provider know that a person is disabled?”, states, it would seem accurately, that:

“A service provider may have treated a disabled person less favourably for a reason related to their disability even if it did not know the person was disabled.”

The Code goes on to give the following example:

“A pub employee orders a customer who is lying prone on a bench seat to leave the premises because he assumes she has had too much to drink. However, the customer is lying down as a result of a disability rather than alcoholic consumption. The refusal of further service [which we take it means further service of drink] is for ‘a reason which relates to the disabled person’s disability’. This will be unlawful unless the service provider is able to show that the treatment in question is justified as defined by the Act.”

But publicans and those who work for them commit criminal offences if they allow disorderly conduct on licensed premises (section 140 of the Licensing Act 2003) or sell alcohol to a person who is drunk (section 141). (The 2003 Act is not yet in force, but is due to become so in 2005, and there are equivalent earlier provisions in force under the Licensing Act 1964). There is a real possibility that the publican is bound to be in the wrong if he refuses to serve an apparently drunken person – if the person is in fact drunk then he will commit an offence (and may put his licence in jeopardy too); if that person is only apparently drunk due to a disability, then he will commit an unlawful act which may sound in damages for discrimination. If we are correct in this analysis, such a situation cries out for a fresh look by Parliament.