Round #1122

Landlord served a section 8 notice citing Ground 14 (nuisance / annoyance to neighbours) supported by three witness statements: a neighbour, the housing officer and a noise-abatement report from the local authority dated November 2024. The tenant has a documented mental health condition and the local authority's Adult Social Care team is engaged. The judge at first hearing made directions for medical evidence. How should the discretionary stage under section 9A Housing Act 1988 weight Equality Act 2010 reasonable-adjustment considerations against the proven nuisance?

# Ground 14 / Section 9A Housing Act 1988: Balancing Discretion Against Equality Act 2010 Reasonable Adjustment ## Preliminary Structural Point These are **two analytically distinct but interacting legal frameworks** that must be addressed sequentially, not conflated. The court must: 1. **First**: Determine whether Ground 14 is established (fact-finding) 2. **Second**: Exercise the section 9A discretion (reasonableness) 3. **Throughout**: Apply the public sector equality duty where the landlord is a social landlord, and assess whether the Equality Act 2010 operates as a substantive constraint on the possession order itself --- ## I. The Legal Framework ### A. Ground 14 – Establishing the Ground Ground 14 (Schedule 2, Housing Act 1988) is **discretionary**. The court must be satisfied: - The tenant, or a person residing in or visiting the dwelling, has been guilty of conduct causing or likely to cause nuisance or annoyance to a person residing, visiting or otherwise engaging in lawful activity in the locality; **or** - Has been convicted of certain offences. **Key evidential points on the facts given:** | Evidence | Weight | Vulnerability | |----------|--------|---------------| | Neighbour witness statement | Direct victim evidence | Cross-examination required; consistency with ASC records | | Housing officer statement | Investigative/response record | Must establish personal knowledge vs. hearsay | | LA noise-abatement report (Nov 2024) | Official record – significant weight | Admissibility under Civil Evidence Act 1995; hearsay notice required | The ground is likely **capable of being established** on these facts, but **establishment is not the end**. --- ### B. Section 9A Housing Act 1988 – The Reasonableness Discretion Section 9A (inserted by Anti-social Behaviour Act 2003, s.16) applies specifically to Ground 14 cases where the tenant has a **mental illness or mental disorder** within the meaning of the Mental Health Act 1983. **The section 9A(2) checklist – the court MUST have regard to:** > (a) the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought; > (b) any continuing effect the nuisance or annoyance is likely to have on such persons; > **(c) the effect that making the possession order would be likely to have on the health, or the well-being, of the person against whom it is sought.** This is a **mandatory** checklist – failure to address each limb is an error of law susceptible to appeal: *Manchester City Council v Pinnock* [2010] UKSC 45 at [52]–[55] (see also the Court of Appeal's treatment of s.9A in *Knowsley Housing Trust v McMullen* [2006] EWCA Civ 539). > **Critical practitioner point**: Section 9A does not create a **veto** for mental illness; it creates a **structured balancing exercise** that gives health/well-being a mandatory, not merely permissive, role. --- ### C. Equality Act 2010 – The Operative Provisions Three distinct EA 2010 mechanisms engage: #### 1. Disability Discrimination – Section 15 EA 2010 (Discrimination Arising from Disability) This is the primary route. If: - The nuisance behaviour **arises in consequence of** the tenant's mental health disability; and - The landlord treats the tenant unfavourably by seeking possession; and - The landlord **cannot show** the treatment is a proportionate means of achieving a legitimate aim; then the possession claim may constitute unlawful discrimination. **Key authorities:** - *Akerman-Livingstone v Aster Communities Ltd* [2015] UKSC 15 – Supreme Court held that EA 2010 defences in possession proceedings are **freestanding defences**, not merely factors in the reasonableness discretion. The court must adjudicate them as such, applying structured proportionality review. - *Barnsley MBC v Norton* [2011] EWCA Civ 834 – disability must be considered even where ground is established. **The proportionality test** under s.15(1)(b) requires the landlord to demonstrate: - A **legitimate aim** (protection of neighbours, maintenance of housing stock, deterrence of ASB) - That possession is **proportionate** – i.e., **necessary** and **no less restrictive alternative** is reasonably available #### 2. Duty to Make Reasonable Adjustments – Section 20/21 EA 2010 A landlord (as a service provider / person exercising a public function) has a duty to make reasonable adjustments where a **provision, criterion or practice (PCP)** puts a disabled person at a substantial disadvantage. **The relevant PCP**: The landlord's anti-social behaviour policy / possession proceedings procedure. **Reasonable adjustments potentially required:** - Engagement with Adult Social Care before issuing proceedings - Referral to a Community Mental Health Team (CMHT) with a view to managing behaviour - A **Care Act 2014 assessment** / support plan (given ASC engagement is confirmed) - Mediation between tenant and neighbours - Tenancy support / floating support services - A **management transfer** to alternative accommodation less proximate to affected neighbours **The reasonable adjustment duty is anticipatory and ongoing** – it applies not just at the moment of issuing proceedings but throughout: *Finnigan v Northumbria Police* [2013] EWCA Civ 1191. #### 3. Public Sector Equality Duty – Section 149 EA 2010 If the landlord is a **local authority** or a **registered provider** carrying out public functions: The landlord must, in the exercise of its functions, have **due regard** to: - The need to **eliminate discrimination** - The need to **advance equality of opportunity** - The need to **foster good relations** **Case law on PSED in possession proceedings:** - *Powell v Dacorum BC* [2019] EWCA Civ 23 – PSED must inform the decision to bring and maintain proceedings; failure is judicially reviewable and relevant to the section 9A exercise. - The landlord should have conducted and documented a **PSED/Equality Impact Assessment** prior to issuing the section 8 notice. **Litigation point**: If no documented EIA/PSED consideration is evident in the pre-action correspondence and landlord's decision-making records, this should be **specifically pleaded** in the defence/counterclaim. --- ## II. How the Discretionary Weighing Should Operate ### The Correct Analytical Sequence ``` Step 1: Is the tenant disabled within s.6 EA 2010? ↓ [Medical evidence directed – awaited] Step 2: Does the nuisance behaviour arise in consequence of disability? (s.15) ↓ [Causal nexus – medical evidence + ASC evidence critical] Step 3: Has the landlord discharged the reasonable adjustment duty BEFORE and DURING proceedings? (s.20/21) ↓ [Disclosure of pre-action steps, ASC liaison records] Step 4: Is the PSED satisfied? (s.149) ↓ [EIA / documented consideration] Step 5: Section 9A structured balancing – mandatory consideration of s.9A(2)(a),(b),(c) ↓ Step 6: Proportionality / Akerman-Livingstone freestanding EA 2010 defence ↓ Step 7: Discretion – is it reasonable to make the order? ``` --- ### Weighing the Competing Factors #### Factors Favouring the Landlord / Possession | Factor | Legal Relevance | |--------|----------------| | Three corroborating witnesses including official LA report | Strong evidential foundation for Ground 14 | | Noise-abatement action by LA | Independent regulatory response – suggests severity | | Ongoing impact on neighbours | s.9A(2)(a) – welfare of third parties | | Risk of continuing nuisance | s.9A(2)(b) – future harm | | Legitimate aim of protecting other residents | EA 2010 proportionality justification | #### Factors Favouring Suspension / Dismissal | Factor | Legal Relevance | |--------|----------------| | Documented mental health condition | Gateway to EA 2010 s.15 / s.9A |

## Discretionary Possession Under Ground 14 and Section 9A: Balancing Nuisance Against Equality Act 2010 Reasonable Adjustment --- ### Legal Framework **Ground 14, Schedule 2, Housing Act 1988** is a discretionary ground. The court *may* order possession only if: 1. The ground is **proved** (nuisance/annoyance to neighbours or the locality), *and* 2. It is **reasonable** to make the order — the *reasonableness test* under **s.7(4) HA 1988** **Section 9A HA 1988** (inserted by Anti-social Behaviour, Crime and Policing Act 2014, s.98) imposes an *additional mandatory gateway*: before making a possession order, the court **must** be satisfied that it is **reasonable to do so**, having regard to the effect of the behaviour on others *and the effect on the tenant* of making the order. These are cumulative, not alternative, gateways. --- ### Step 1 — Establishing the Ground On the facts the ground is likely established: | Evidence | Weight | |---|---| | Neighbour witness statement | Direct experiential evidence of annoyance/nuisance | | Housing officer witness statement | Professional corroboration, pattern/frequency evidence | | LA noise-abatement report (Nov 2024) | Statutory-quality documentary evidence — high probative weight | Three independent sources substantially satisfy the **balance of probabilities** threshold. The tenant's mental health condition does not negate the *fact* of nuisance at this stage — it becomes material at the reasonableness/s.9A stage. --- ### Step 2 — The Reasonableness Test (s.7(4) HA 1988) Reasonableness is a **global, fact-sensitive evaluation**. The court considers: - Severity, frequency and duration of the nuisance - Impact on neighbours and the wider community - Tenant's personal circumstances, including **disability** - Landlord's conduct and whether it took proportionate steps short of possession - Availability and adequacy of alternative remedies (injunction, suspended order) **Critical point:** A bare reasonableness finding insufficient — s.9A imposes the additional structured analysis below. --- ### Step 3 — Section 9A Structured Analysis #### 3(a) Effect on Others (s.9A(2)(a)) The court must assess: - Nature and seriousness of nuisance to the neighbour - Whether behaviour is ongoing or historical - Vulnerability of affected neighbours - Adequacy of any undertakings or injunctions to protect them On these facts, a statutory noise-abatement report from the local authority is significant — it demonstrates the nuisance crossed the threshold to formal regulatory intervention. #### 3(b) Effect on the Tenant of Making the Order (s.9A(2)(b)) This is where the **Equality Act 2010** analysis is embedded: - Loss of home engages **Art.8 ECHR** proportionality - Documented mental health condition likely constitutes a **disability** within **s.6 EA 2010** (substantial, long-term adverse effect on normal day-to-day activities) - Eviction may **materially worsen** the condition — medical evidence directed at first hearing goes precisely to this --- ### Step 4 — Equality Act 2010 Reasonable Adjustment #### Which Duty Applies? | Duty | Applicability | |---|---| | **s.20–21 EA 2010** — reasonable adjustments | Applies to the *landlord* as a provider of services / person exercising a public function; a social landlord is squarely within s.29 EA 2010 | | **s.15 EA 2010** — discrimination arising from disability | Nuisance *caused by* or *connected to* the mental health condition engages s.15 — landlord must show possession is a **proportionate means of achieving a legitimate aim** | | **s.19 EA 2010** — indirect discrimination | Less likely to be the primary vehicle here | #### The s.15 EA 2010 Proportionality Analysis The landlord must demonstrate that **no less discriminatory measure** could adequately protect neighbours: ``` Legitimate aim: Protecting neighbours from nuisance — plainly legitimate Proportionality: Could the following have been pursued first? - Referral to / engagement with mental health services - Acceptable behaviour support / tenancy support - Injunction under ASB Act 2014 with exclusion zones - Suspended possession order with conditions - Mediation - Care package via Adult Social Care (already engaged) ``` The fact that **Adult Social Care is already engaged** is highly material: it evidences that a support-based intervention is *live and operative*. Proceeding to outright possession while a care plan is being formulated may be disproportionate. #### The Reasonable Adjustment Duty in the Possession Proceedings The landlord's duty under s.20 EA 2010 is not discharged merely by referring to Adult Social Care — it must demonstrate it took **proactive steps** before commencing proceedings: - Did it provide written correspondence in an accessible format? - Did it make contact with the GP/care team prior to issuing notice? - Did it consider a **diversionary tenancy support package**? - Did it obtain an equality impact assessment before serving the s.8 notice? If not, this goes to reasonableness of the order and may, depending on the landlord's nature, give rise to a **standalone EA 2010 defence** (see *Akerman-Livingstone v Aster Communities Ltd* [2015] UKSC 15 — EA 2010 defence in possession proceedings must be considered on its merits and cannot be summarily dismissed). --- ### Step 5 — Weighting the Competing Considerations at the Discretionary Stage ``` AGAINST possession FOR possession ───────────────────────────────────────── ───────────────────────────────────── Documented mental health disability Three independent evidence sources Nuisance causally linked to disability Statutory noise-abatement report Adult Social Care actively engaged Ongoing nuisance (not solely historical) Medical evidence directions outstanding Neighbour affected person — also has rights Outright order disproportionate (s.15 EA) Landlord's legitimate aim established No evidence RA duty discharged pre-notice Art.8 ECHR — loss of home is last resort ``` --- ### Step 6 — Practical Outcome Options for the Court The court has a graduated range of orders: 1. **Adjourn** — pending medical evidence and care plan (appropriate at this stage given directions already made) 2. **Suspended Possession Order (SPO)** — most likely disposal if nuisance proved; conditions tied to engagement with mental health / care team, noise compliance and support plan milestones 3. **Postponed Possession Order** — similar to SPO, date to be fixed 4. **Outright Order** — only justifiable if nuisance severe and unremitting, support exhausted, and neighbours' rights cannot otherwise be protected; very difficult to justify while Adult Social Care plan is live 5. **Dismiss** — if s.15 EA 2010 defence established and proportionality not satisfied --- ### Key Authorities | Case | Principle | |---|---| | *Akerman-Livingstone v Aster* [2015] UKSC 15 | EA 2010 defence in possession must be tried; cannot be struck out | | *Manchester City Council v Pinnock* [2010] UKSC 45 | Art.8 proportionality applies to all possession orders | | *Southend-on-Sea BC v Armour* [2014] EWCA Civ 231 | Reasonableness under Ground 14 — court must weigh tenant's personal circumstances | | *Knowsley Housing Trust v White* [2008] UKHL 70 | Suspended orders and conditions — court's discretion is wide | | *ZH (Tanzania) v SSHD* [2011] UKSC 4 | Proportionality where vulnerable party affected — structured balancing required | --- ### Practical Advice for Tenant's Representative 1. **File medical evidence promptly** in compliance with directions — this is the evidential foundation for the s.15 EA defence 2. Obtain a **letter from Adult Social Care** confirming engagement, the support plan in place and its prognosis 3. Prepare a **s.15 EA 2010 schedule** documenting the causal link between the mental health