S v Floyd & Anor

This is the judgment of the court to which all members of the court have contributed.

As presented to us, this appeal raises, amongst other issues, a fundamentally important point of principle as to the inter-relationship between the Housing Act 1988 (the 1988 Act) and the Disability Discrimination Act 1995 (the 1995 Act). In the event the appeal fails but the case illustrates the urgent need for clarification by the House of Lords of the scope of the 1995 Act, a matter to which we return at the end of this judgment.

The appellant, S, appeals, with permission granted by Sir Henry Brooke on 15 January 2007, from an order of His Honour Judge Simpkiss in the Brighton County Court on 31 October 2006. Judge Simpkiss allowed S’s application for permission to appeal but dismissed his appeal from an order made by District Judge Fawcett on 9 June 2006 ordering him to give the respondent, Mrs Floyd, possession of a flat in Hove and to pay her £7,920 for the “balance admitted” of the rent.

S had been the assured tenant of the premises since May 1996. There were earlier proceedings between the parties culminating in an order made by consent in the Brighton County Court on 20 March 2001 requiring S to pay Mrs Floyd £4,206.80 within 6 months. On S’s own admission the whole of that sum remains outstanding.

In September 2003 the rent again fell into arrears.

On 3 March 2006 Mrs Floyd gave S notice in the appropriate form (see section 8 of the 1988 Act) that she intended to apply to the court for a possession order on Grounds 8, 10 and 11 in Schedule 2 to the 1988 Act. The particulars of claim, relying on the same grounds, were issued on 6 April 2006.

Grounds 10 and 11 give the court a discretionary power to make a possession order in certain circumstances “if it considers it reasonable to do so”: section 7(4) of the 1988 Act. Ground 8, in contrast, is a mandatory ground under which the court must make an order (see section 7(3)) if at least eight weeks’ rent lawfully due is unpaid both at the date of the service of the notice under section 8 and at the date of the hearing.

S filed a defence on 8 June 2006. It was, we were told, drafted by S himself. It is in his handwriting. It raised a number of matters and stated that S “is counter-claiming for compensation for ‘constructive harassment’ resulting from [the landlord’s] unlawful claims”. It went on, however, to say that, without prejudice to the counterclaim, S “recognises that the rent payments suspended by him for due reason amount to £7,920”. He further pleaded that accrued housing benefit due to him and held by the local authority was in excess of £8,200. Against the rubric “If you believe you would suffer exceptional hardship by being ordered to leave the property immediately, say why”, S wrote:

“Defendant contends that due to issues of ill-health, disability and old age he would suffer exceptional hardship if any effective possession order were to be granted (and not also suspended). Please see attached supplementary page … for further details”.

That document (the supplementary page) also, we were told, was drafted by S himself and typed out by him. The relevant parts are as follows (we add the paragraph numbers for ease of reference):

Those documents were sent to the court under cover of a letter from S dated 8 June 2006 enclosing copies of various party and party correspondence and also a letter from the local authority dated 21 June 2005 showing that at that date the arrears of housing benefit due to S totalled £4,771. A manuscript annotation in S’s handwriting indicates that as of 4 June 2006 the arrears of benefit were £8,188 “or more”.

On the day of the hearing, S had the benefit of representation by Mr Leaver, who is employed by Brighton Housing Trust as one of its team of Housing Advisers appeared under the county court duty representation scheme. Mr Leaver has considerable experience of helping tenants suffering from mental health problems or mental impairment. Mrs Floyd was represented by Mr Jones.

There is a transcript of the proceedings before the District Judge. The District Judge said that she had read the papers. The transcript continues:

“THE DISTRICT JUDGE: They appear to be admitted arrears, do they not?

MR JONES: Yes.”

We can pick it up a little later:

“MR LEAVER: Madam, there are admitted arrears, I think –

THE DISTRICT JUDGE: Are they not in excess of £7,000?

MR LEAVER: – what we had asked for in this matter is for the proceedings to be halted because I have got concerns about Mr S’s mental capacity and we would like to request that the proceedings be halted while we look into this matter under CPR Order 21.

THE DISTRICT JUDGE: Yes but the difficulty is, of course, he has admitted arrears, has he not, in his defence which are more than eight weeks. I mean, what has his mental capacity got to do with that? After all, Mrs Floyd, she is not a social landlord.

MR LEAVER: She is not, no.

THE DISTRICT JUDGE: She has no social responsibilities to your client, she is entitled to her rent and he has admitted he has got arrears in excess of £7,000; that is the problem, is it not?

MR LEAVER: We admit the arrears, our concerns are making a possession order with someone that may be lacking capacity and is extremely vulnerable.

THE DISTRICT JUDGE: Well perhaps he is but it is not Mrs Floyd’s responsibility, that is the Local Authority’s, is it not?

MR LEAVER: Eventually it would be, yes.

THE DISTRICT JUDGE: Yes, well why is it that Mrs Floyd has to bear the brunt of social problems? She has not had her rent. Your client admits that he is £7,000 in arrears. Whether he has mental problems or not that does not give him a defence, does it, under ground 8?

MR LEAVER: It does not give him a defence of – I took some advice earlier and was advised to ask for a halt in the proceedings under CPR Order 21.

THE DISTRICT JUDGE: Well I do not think it is appropriate, I mean, this has been going on for so long …

MR LEAVER: No, I do not. The proceedings under section 8, there is no defence under section 8 –

THE DISTRICT JUDGE: Right.

MR LEAVER: – and we are not disputing that –

THE DISTRICT JUDGE: So she is entitled to possession.

MR LEAVER: – what I was asking for was that the proceedings could be stayed under CPR 21.

THE DISTRICT JUDGE: I do not think that is appropriate …”

And a little later:

“THE DISTRICT JUDGE: Well I cannot see that there is any defence whether or not your client is mentally ill or not.”

The District Judge accordingly made a possession order.

S sought permission to appeal. His application was heard by His Honour Judge Simpkiss, who gave judgment on 31 October 2006. Judge Simpkiss gave S permission to appeal but dismissed the appeal.

Sir Henry Brooke gave permission to appeal on 15 January 2007. The appeal had been fixed for hearing on 8 May 2007 but was vacated to await the outcome of the appeal in Lewisham London Borough Council v Malcolm (Disability Rights Commission intervening) [2007] EWCA Civ 763, [2008] 2 WLR 369, in which judgment was in the event given on 25 July 2007.

Before Judge Simpkiss, as before us, the appeal was put on the basis that the District Judge was wrong in refusing to grant an adjournment. Our focus, as the focus of the submissions we heard, must accordingly be on the reasoning and decision of the District Judge.

On behalf of S Mr Jan Luba QC and Mr Michael Paget mount their attack on the decision of the District Judge on three separate grounds:

First, however, we should mention two preliminary matters.

Because of the general importance of the ground relating to the 1995 Act, the Equality and Human Rights Commission sought permission to intervene. We granted the Commission’s application but made clear that its submissions should be confined to that ground of appeal and to general points of principle; the other issues argued before us were properly matters for S and Mrs Floyd alone.

At the beginning of the hearing an application was made on behalf of S that we should hear the appeal in private because of what was said to be highly sensitive personal medical and other information about him. We refused that application. The principle that justice is administered in public – that the Queen’s courts are open to all – is fundamental. It is not lightly to be set aside. Except in very rare circumstances the Court of Appeal sits in public. There was nothing in the circumstances of this case which remotely justified our sitting in private. Indeed, the presence of the Commission was premised on the assertion that the case involved at least one important point of law of general public importance. But our decision would have been exactly the same even if there had been no particular public interest in the point in issue. The important public interest which is in play here is nothing to do with the point which interests the Commission; it is the public interest which demands that except in rare circumstances the court sits in public. Justice was done by the order we made, directing that the appellant was to be referred to as S, and by not publicly identifying his address.

Mr Luba submitted that the issue of S’s capacity to conduct the litigation had been raised by an experienced mental health worker, that not least because of the gravity of the issues at stake (S was facing the loss of his home) the District Judge should have realised that the question of S’s capacity properly required further investigation, and that in all the circumstances, and in the light of the overriding objective, an adjournment should have been allowed, albeit only for such time as it would have taken to obtain a proper assessment of S’s capacity. Mr Luba goes so far as to assert that no reasonable judge in the circumstances would have failed to grant an adjournment where capacity was in issue.

Judge Simpkiss did not agree. Nor do we. As Judge Simpkiss said, and we respectfully agree,

“there was insufficient material before the District Judge to enable it to be submitted seriously that she was wrong in exercising her discretion not to grant an adjournment on that ground. All that she had was a concern raised by Mr Leaver, but not any evidence or even circumstantial evidence that he lacked capacity such as would require him to be made a patient.”

It is clear from Masterman-Lister v Brutton & Co (No 1) [2002] EWCA Civ 1889, [2003] 1 WLR 1511, that the test of capacity is issue specific. It is not a question of whether the litigant has capacity to manage and administer his affairs generally, but whether he has capacity to conduct the particular legal proceedings he is concerned with. The relevant test was described by Chadwick LJ in Masterman-Lister as follows at paragraph 75:

“For the purposes of … CPR Pt 21 the test to be applied … is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law whether substantive or procedural should require the interposition of … a litigation friend”.

There was nothing before the District Judge to suggest that S did not or might not understand the comparatively simple and straightforward issues raised in the proceedings on which his input was likely to be necessary. Indeed, and as Mr David Giles, on behalf of Mrs Floyd, points out, Mr Leaver did not in fact make any such assertion to the District Judge.

In truth, all the indications were the other way, namely that S had a very good understanding of the issues and that he was able to participate intelligently in the process. It was, after all, S himself who had drafted both the defence and the attachment, documents which would not have given any judge reason to question his capacity but which, on the contrary, and allowing that some of his alleged defences may have been bad in law, seemingly showed an intelligent engagement with both the fundamentals and the details of the litigation. Moreover, as Mr Giles points out, there are passages in the transcript, which we need not set out, showing that S participated fully and intelligently in the hearing before the District Judge.

In our judgment the District Judge was entitled to proceed as she did and without granting an adjournment on this ground.

Before us, as before Judge Simpkiss, there was a report dated 22 June 2006 from a Cognitive Behavioural Psychotherapist stating that S’s presentation can best be viewed as coming under the general heading of Obsessive Compulsive Personality Disorder. Three extracts from this report – which is as revealing for what it does not say as for what it does say – will suffice:

“He presents with perfectionism and inflexibility that can interfere with task completion, due to overly strict standards. He is preoccupied with details to the extent that the major point of the activity is lost”.

“Many more hours are spent thinking or constructing written replies / correspondence that he has to deal with. Priorities are constantly juggled and his priorities may not be what others would consider appropriate. Our last few sessions have been taken up with attempting to prioritise completion and return of a form which would enable him to claim extra monies. He has returned to our sessions with many reasons why this has not been completed and it remains a task undone. He rarely ‘allows’ himself time off to relax”.

“[S]’s current plight ie eviction proceedings, I consider to be part and parcel of his aforementioned presentation and personality and should be taken into account when dealing with his appeal”.

That report, it will be noted, does not assert that S lacks capacity or that he lacked capacity at the time of the hearing before the District Judge.

Before us, as before Judge Simpkiss, there was also a witness statement by Mr Leaver dated 26 June 2006 in which he described his involvement before the District Judge on 9 June 2006. Mr Leaver says that before meeting S, but having read the papers, he had reason to believe that S could well suffer from a mental health problem and that there could be an issue as to his legal capacity. Having met S at court, Mr Leaver felt that S lacked focus on what he (Mr Leaver) thought was relevant and that he appeared to be preoccupied with matters which he (Mr Leaver) could not see as relevant. “This led me to conclude that there was indeed an issue about his capacity.” In a second statement dated 28 July 2006 Mr Leaver expressed the following views:

“[S] has patently been unable to properly manage his financial affairs on account of his mental impairment. I have had several conversations with [S] and I have looked in detail at his Housing Benefit claim. [S] has a genuine inability to complete even simple and straight forward tasks.”

Again, that evidence is as revealing for what it does not say as for what it does say. There is nothing in it which in any way invalidates the District Judge’s decision not to grant an adjournment.

Strikingly lacking in the evidence before Judge Simpkiss and before this court is anything establishing, even now, that S lacked capacity. In fact it is conceded that he did not. So it might be thought that this entire ground of appeal is rather unreal.

Mr Luba invited us to offer guidance on the ‘threshold’ or ‘litmus’ test to be applied by judges faced with the kind of situation presented to the District Judge in this case. We decline to do so. The relevant principles are to be found comprehensively set out in Masterman-Lister and we see no advantage and some danger in any attempt to add some general gloss of the kind suggested.

Notwithstanding section 7(3) of the 1988 Act the District Judge had power to adjourn the proceedings but only in “exceptional circumstances”: Matthews at paragraph 32.

Mr Luba says that there were such circumstances here. He says that (i) the withheld rent was easily available – the housing benefit was ready and waiting to be paid to the landlord, (ii) a disabling condition on S’s part prevented him from giving the authority which would have enabled the benefit to be paid over, (iii) the District Judge had been informed of S’s mental health problems and (iv) S had obtained the services of a specialist adviser who could overcome the problem and restore payment of rent. In the alternative he submits that the District Judge should, of her own motion, have adjourned so that the possibility of a defence under the 1995 Act could be explored.

Mr Luba further submits that the District Judge erred in law when she proceeded on the basis that she had no discretion but to make the order.

There are a number of difficulties with this.

In the first place, and as Matthews makes clear, the non-receipt of housing benefit cannot of itself amount to an exceptional circumstance, even where there has been maladministration by the housing benefit authority. As Dyson LJ observed at paragraph 35:

“If the door were opened to applications for adjournments founded on housing benefit problems, there would be a real danger that the housing lists would become congested with contested applications for adjournments.”

Secondly, and more fundamentally, there is the simple fact that no application for an adjournment on these or any other analogous grounds was made to the District Judge. On the contrary, and as the Transcript shows, it was admitted in terms on S’s behalf that there were arrears and that he had no defence to the claim under ground 8. Moreover, and as the transcript also shows, the only basis suggested for any adjournment was in relation to the question of S’s capacity in the context of CPR 21. No adjournment was sought with a view to S being able to pay off the arrears. And there was no suggestion that the question of S’s capacity was relevant to anything apart from CPR 21. In particular it was not suggested that the arrears had arisen because of S’s incapacity or disability. Nor was there, either in the documents filed by S or in the submissions made by Mr Leaver, so much as a passing reference to the 1995 Act.

Furthermore, as Mr Giles’ careful analysis shows, there was nothing in the documents S had drafted by way of defence to suggest that his decision to hold back the rent was in any way referable to his disabilities. What “caused” him to suspend payment of rent was, in his own words, what he saw as the landlord’s illegitimate and excessive demand. And as those documents show, S’s reliance upon his “ill-health, disability and old age” was in the context of a plea that he would suffer exceptional hardship if a possession order was made, which is not at all the same point as that now being made by Mr Luba.

In these circumstances we do not see how the District Judge can be criticised for not exercising a power which she was not invited to exercise and where there was nothing in the papers before her to suggest that it should be. No doubt any judge will be alert to see that injustice is not suffered by someone in S’s position but there is a limit to what can sensibly or fairly be expected of a District Judge hearing a possession list. It is unrealistic to expect a District Judge (or any judge) to be alert to the existence of a theoretical defence which has not been even tentatively advanced by either the defendant or his legal representative and which is not even alluded to in any of the evidence or papers before the court.

Nor in circumstances where no application had been made for an adjournment on this ground is the District Judge to be criticised for her precise choice of language. Given the concession that S had no defence and the absence of any application for an adjournment (other than that referable exclusively to CPR 21) it is hardly to be wondered at that the District Judge expressed herself as she did and said that she had to make the order.

We should add that if the District Judge had been invited to adjourn on the grounds now being put forward she would, in our judgment, have been entitled to refuse the application.

Mr Luba’s third ground was that the judge wrongly concluded that “there was not an ability to resist the possession proceedings on the basis of disability discrimination that warranted an adjournment.”

This formulation is aimed at preserving for S at a remitted hearing the possibility of setting up the 1995 Act as a defence to a claim for possession based on the mandatory grounds of more than 8 weeks rent arrears under section 7(3) and Ground 8 in Schedule 2 to the 1988 Act.

This ground of appeal presents several difficulties.

The first difficulty, as we have already pointed out, is on the facts. S mentioned disability in his Defence and gave details in the supplementary page, the relevant parts of which we have already set out. In paragraph 3 he described how he had been caused to suspend payments of rent in 2003 by the landlord’s “illegitimate and excessive demand” for an increase in rent. He submitted in the final paragraph that the claim should be dismissed on a number of grounds, including “disability and health issues” which were also relevant to the suspension of any possession order to be made.

At the hearing Mr Leaver referred to disability, but he did not invite the District Judge to adjourn the proceedings on the grounds that they constituted or involved unlawful disability discrimination which might provide S with a defence to the claim. Mr Leaver also told the District Judge that S admitted the arrears of rent and had no defence to the claim.

In these circumstances, and for reasons we have already explained, we do not see how the District Judge can properly be criticised for taking the course she did.

The second difficulty is on the law. It is not immediately obvious (a) how the 1995 Act could provide a basis for resisting a claim for possession on a statutory mandatory ground or (b) how a landlord would be unlawfully discriminating against a disabled tenant by taking steps to enforce his statutory right to a possession order for admitted non-payment of rent for 132 weeks. The 1995 Act was enacted to provide remedies for disabled people at the receiving end of unlawful discrimination. It was not aimed at protecting them from lawful litigation or at supplying them with a defence to breach of a civil law obligation. Like other anti-discrimination legislation, the 1995 Act created statutory causes of action for unlawful discrimination in many areas, such as employment, the provision of goods, facilities and services and the disposal or management of premises, but it did not create any special disability defence to the lawful claims of others, such as a landlord’s claim for possession of premises for arrears of rent. The legislation is not about disability per se: it is about unlawful acts of discrimination on a prohibited ground, ie., unjustified less favourable treatment for a reason which relates to the disabled person’s disability.

Mr Luba relied on two sections in the 1995 Act and he cited a trio of cases.

Section 22(3) of the 1995 Act provides that:

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

(c)

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

It is not unlawful to evict a disabled person from premises by lawful process. It could only become unlawful if it involved unjustified discrimination against the disabled person. The definition of discrimination in section 24 in relation to premises is all important:

“(1)

For the purposes of section 22, a person (“A”) 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; and

(b)

he cannot show that the treatment is justified.

(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) … ”

Mr Luba’s first case was Manchester City Council v Romano (Disability Rights Commission intervening) [2004] EWCA Civ 834, [2005] 1 WLR 2775. The claims for possession were made by a local authority against mentally ill secure tenants on the grounds of nuisance. Possession orders were made. Appeals against them were dismissed. According to the headnote the case decided that:

“ … where a landlord decided to serve a notice seeking possession or to cause a claim for possession to be issued it was either evicting the tenant or subjecting her to “any other detriment” within the meaning of section 22(3)(c) of the 1995 Act, and if the reason for such action related to the disability of the tenant it would be unlawful unless it could be justified pursuant to section 24(2) of the 1995 Act … ” [reference was made to paragraphs 50, 51, 60, 63, 75, 93, 104, 112 and 114 of the judgment of the court given by Brooke LJ]

That was a case in which the court had a discretion to make a possession order if it was reasonable to do so. It was held that disability under the 1995 Act would be a relevant factor when the court was determining, pursuant to section 84(2)(a) of the Housing Act 1985, whether it was reasonable to make an order for possession. This ruling was not surprising. The court noted that the county courts have had for many years to take the health of both landlord and tenant into consideration when determining whether it is reasonable to make an order for possession (see paragraph 68).

Mr Luba relied on this court’s rejection of a submission (at paragraph 65) on behalf of the landlord that the statutory schemes whereby a landlord recovered possession of his premises were unaffected by the 1995 Act. The court indicated that any argument based on the 1995 Act should be included as part of the defence rather than bringing a separate counterclaim and recognised that a landlord may seek possession on a mandatory ground that has been brought about by the tenant’s disability. As for the definition of discrimination in the 1995 Act, the court set out extensive quotations from Clark v. Novacold Ltd [1999] ICR 951. That was an employment case in which an attempt was made in this court to explain the difference between the concept of discrimination and the nature of the comparisons to be made in, on the one hand, the earlier Sex Discrimination and Race Relations Acts and, on the other hand, the 1995 Act.

However, we note that, despite the detailed treatment of the facts and the legislation in the 123 paragraphs of the judgment of the court in Romano, there was very little discussion of what exactly were the acts of unlawful discrimination on the part of the landlord council that had to be justified by the landlord when seeking possession of the premises in question on the ground of breach of the tenancy agreement by the tenant (see paragraphs 51-55).

The judgment in Romano expressed concern (paragraphs 67-68) at the evident difficulties in sections 22 and 24 of the 1995 Act and said that, unless Parliament took rapid remedial action, the courts may be confronted with a deluge of cases in which disabled tenants are resisting possession proceedings by reliance on the 1995 Act. It may be observed, however, that the evident difficulties would only arise in cases in which the court was satisfied that there was in fact unlawful discrimination on the part of the landlord in evicting a disabled person or subjecting him to any other detriment. This would only occur where it was shown that the treatment of the disabled tenant was less favourable “for a reason which relates to the disabled person’s disability.” The definition of discrimination in section 24 refers to the reason for the potentially unlawful treatment. The reason is that of the discriminator, the “A” who is mentioned in section 24(1).

The definition of discrimination does not, we note, refer to the effects that the disability has on a disabled person’s ability to do things, such as to discharge his legal obligations as a tenant. It refers to “a reason” for treatment, which, in this context, would normally require the existence of something in and consciously or subconsciously affecting the mind of the discriminator “A.” See, for example, Taylor v. OCS Group Ltd [2006] EWCA Civ 702, [2006] IRLR 613.

Our attention was drawn to paragraph 14.21 (Eviction) of the Code of Practice issued by the Disability Rights Commission in 2006 which says in relation to section 22(3)(c):

“This prohibition does not prevent the eviction of a disabled tenant where the law allows it, for example, where they are in arrears of rent or have breached other terms of the tenancy, and where the reason for this is not related to their disability (or, if it is, it can be justified under the Act).”

This passage in the Code of Practice is relevant to the second case, Lewisham v. Malcolm. Permission to appeal was granted by the House of Lords. The appeal is fixed for hearing in the week commencing on 28 April next.

In Malcolm the landlord relied on a contractual right to possession, contending that a secure tenant had lost his secure tenancy when he sublet the premises without the landlord’s written consent: section 93 of the Housing Act 1985. There was no discretion to refuse a possession order.

The case was cited for a number of general propositions: that the rights of a disabled tenant under the 1995 Act may prevail over the landlord’s legal right to possession; that the court should not lend its assistance to a landlord, whose treatment of his disabled tenant in seeking possession was unlawful under the 1995 Act, by making a possession order against the tenant; and that the court should dismiss the possession proceedings, if the reason for the landlord’s treatment of the tenant leading to the termination of a tenancy and the attempt to dispossess the tenant related to the tenant’s disability and was discriminatory.

In Malcolm the tenant suffered from the disability of schizophrenia. This was not known to the landlord. It was held that the unlawful subletting leading to the loss of security was related to the tenant’s disability. The court held that the landlord was not entitled to a possession order against the tenant. Section 22 of the 1995 Act made the possession proceedings unlawful.

The third of the trio, Wright v. Croydon LBC [2007] All ER (D) 95 (Eady J), is a striking illustration of the reach of the 1995 Act, as interpreted and applied by these authorities in possession cases. In that case a possession order had been obtained by the local authority. The tenant later produced evidence that she was a diabetic dyslexic. The local authority originally decided not to enforce the possession order, but the rent arrears increased after the order was obtained. The local authority then decided to enforce it and obtained a warrant of execution. The tenant’s application for a stay of the warrant was refused by the District Judge. On the appeal to the Circuit Judge the appellant argued that it would be unlawful under the 1995 Act to evict her, as it was for a reason that related to her disability. The appeal was dismissed.

On a second appeal to the High Court more medical evidence was produced making out a prima facie case that the tenant’s inability to pay her rent was linked to her inefficiency in handling her financial affairs, which in turn was linked to what was alleged to be her disability. The judge said that it might seem thin, and it might not ultimately succeed, but he thought it should be investigated.

Malcolm was cited to Eady J in support of the submission that, in relation to the seeking of a warrant for possession, it was necessary to take into account the provisions and impact of the 1995 Act and that it would be unlawful to evict the tenant, as it would be discriminatory in the sense that her failure to pay rent was attributable to her disability. He made an interim injunction suspending the possession order and remitted the application to stay the warrant on the basis that prima facie the appellant was a disabled person for the purposes of the 1995 Act.

On the basis of sections 22 and 24 of the 1995 Act and of these authorities Mr Luba submitted that the District Judge and Judge Simpkiss proceeded on the erroneous premise that the 1995 Act could never provide a defence to a claim for possession based on the mandatory grounds. Malcolm, he submitted, is authority to the contrary. It was binding on them. It is binding on us. The appeal should therefore be allowed. Mr Luba contended that, had the matter been investigated in the opportunity that should have been provided by an adjournment, S would readily have established that he suffers from a disability for the purposes of the 1995 Act. The disability manifests itself in an inability to manage his affairs properly. His disability was connected to the rent account falling into arrears. By serving a notice of possession and bringing proceedings against S the landlady had taken a detrimental step for a reason related to S’s disability. To use an expression found in Malcolm there was “an appropriate relationship” between the landlord’s reason for starting possession proceedings (non-payment of rent) and S’s disability, which meant that there was unlawful discrimination to which the statutory justifications did not apply.

We cannot accept Mr Luba’s submissions on this ground of appeal. In our judgment, it was not arguable in the circumstances of this case that the 1995 Act provided a defence to the claim for possession. There was no error in the District Judge’s refusal of an adjournment. There was no error in the decision of Judge Simpkiss to dismiss S’s appeal. He was right to distinguish Romano as a decision on the factors relevant to a discretionary jurisdiction to order possession.

As for Malcolm, although neither judge had the benefit of its guidance, as it was decided subsequent to their decisions, a number of points may be made showing that it does not govern this case.

First, the mandatory provisions of section 7(3) of the 1988 Act, which give the tenant a statutory right to a possession order against the tenant who is more than 8 weeks in arrears with the rent, did not apply in Malcolm. The local authority relied on its contractual right to possession.

Secondly, the court in Malcolm found that the subletting by the tenant, which led to the loss of security, and the reason for the landlord’s possession proceedings, related to the tenant’s disability. It was held that the landlord had to provide a justification to satisfy section 24 of the 1995 Act before the court would make a possession order.

A finding that the reason for the proceedings related to the disability of the tenant is impossible in this case. S never suggested that his disability was a reason for the landlord’s possession proceedings or that his non-payment of the rent for 132 weeks between September 2003 and March 2006 related to a disability from which he suffered. On his own account he suspended payment of rent because of the landlord’s attempts to increase the rent. (He resumed payment of rent after service of the Ground 8 notice on 6 March 2006.)

There was no reason for the District Judge to treat this case other than as one in which the reason for the landlord’s claim for possession was the pleaded ground of non-payment of rent. No question of unlawful discrimination contrary to the 1995 Act could arise so as to require the landlady to justify her claim to a possession order or to disentitle her to such an order under the 1988 Act.

We would therefore dismiss the appeal on this ground, as well as on the other two grounds. At the forthcoming hearing of Malcolm the House of Lords will see from the procedural history of this case and the arguments deployed the urgent need for a clarification of the scope of application of the 1995 Act in possession proceedings, which come before the county courts throughout the country every day. In this connection we should mention that one of the members of this court has dealt recently with an application for permission to appeal from a judgment of a Circuit Judge (Bernstein v Tate, December 21, 2007) in a case involving what would normally be a mandatory order for possession under section 21 of the 1988 Act. The tenant claimed that non-payment of rent was due to various health problems including depression, as a result of which she had to stop working, and her incapacity and housing benefit was used in paying off her overdraft instead of the rent. Prior to Malcolm the District Judge made a possession order on the basis that the tenant’s disability had nothing to do with the landlord’s decision to seek possession. But the Circuit Judge granted a stay, set aside the original possession order and re-listed the matter for evidence of the tenant’s disability and further submissions. This appears to have been on the basis that the tenant had a reasonable prospect of success in showing that she was disabled for the purposes of the 1995 Act, and that she was entitled to a stay of the mandatory possession order.

For these reasons the appeal will be dismissed.