S v Floyd & Anor

Factual and Procedural Background

The Appellant, referred to as S, was an assured tenant of a flat in The City since May 1996. Rent arrears arose in September 2003 and persisted thereafter. The Respondent, Mrs Floyd, the landlord, served a notice under the Housing Act 1988 (the 1988 Act) on 3 March 2006, seeking possession on Grounds 8, 10, and 11 of Schedule 2 to the 1988 Act, with Ground 8 being a mandatory ground for possession due to rent arrears exceeding eight weeks.

S filed a handwritten defence, admitting arrears amounting to £7,920 but counter-claiming for compensation for "constructive harassment" relating to alleged unlawful claims by the landlord. S also pleaded disability, ill-health, and old age as reasons why an immediate possession order would cause exceptional hardship.

The possession proceedings were heard by a District Judge who, after considering submissions including concerns about S's mental capacity, made a possession order in favour of Mrs Floyd, noting that S admitted arrears exceeding the mandatory threshold and had no defence under Ground 8.

S sought permission to appeal, which was granted by His Honour Judge Simpkiss, who subsequently dismissed the appeal. Permission to appeal to the Court of Appeal was granted by Sir Henry Brooke. The appeal was delayed pending the outcome of a related case, Lewisham London Borough Council v Malcolm, decided by the Court of Appeal in July 2007.

Legal Issues Presented

1. Whether the District Judge was unreasonable in refusing to grant an adjournment to investigate S's mental capacity to conduct litigation.
2. Whether the District Judge erred in law by concluding that there were no exceptional circumstances to adjourn the possession claim, particularly in light of housing benefit arrears and S's disability.
3. Whether the District Judge erred in law by concluding that there was no ability to resist the possession proceedings on the basis of disability discrimination under the Disability Discrimination Act 1995 (the 1995 Act) that would warrant an adjournment.

Arguments of the Parties

Appellant's Arguments

• The District Judge was unreasonable in refusing an adjournment to assess S's mental capacity, which was raised by a mental health worker, and given the seriousness of losing his home.
• The District Judge erred in law by failing to recognize exceptional circumstances warranting an adjournment, including the availability of housing benefit funds withheld due to S's disability, and the involvement of a specialist adviser to resolve payment issues.
• The District Judge erred in law by not allowing exploration of a defence under the 1995 Act, which might have justified resisting possession proceedings on grounds of disability discrimination.

Respondent's Arguments

• S admitted arrears exceeding eight weeks, constituting a mandatory ground for possession under the 1988 Act.
• The District Judge correctly concluded that mental capacity was irrelevant to the admitted arrears and that Mrs Floyd, as a private landlord, had no social responsibilities to S.
• No defence under the 1995 Act was raised or substantiated; possession proceedings based on mandatory grounds are not negated by disability unless unlawful discrimination is shown.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the three grounds of appeal in turn.

Regarding the first ground, the court held that there was insufficient evidence before the District Judge to justify an adjournment to assess S's capacity. The test of capacity is issue-specific, and S had demonstrated an understanding of the proceedings by drafting his own defence and participating intelligently at the hearing. Evidence from mental health professionals did not establish a lack of capacity at the relevant time.

On the second ground, the court emphasized that adjournments under the Housing Act 1988 for possession claims based on mandatory grounds require exceptional circumstances. The court found no such circumstances here, noting that no application for adjournment on grounds related to housing benefit or disability was made before the District Judge. The admitted arrears and concession of no defence under Ground 8 justified the possession order. The court further observed that the District Judge could not be faulted for not raising theoretical defences not advanced by the parties.

Concerning the third ground, the court examined the applicability of the Disability Discrimination Act 1995 (the 1995 Act) as a defence to possession claims based on mandatory grounds. It acknowledged that while the 1995 Act prohibits unlawful discrimination against disabled tenants, it does not provide a general defence to lawful possession claims where rent arrears exist. The court distinguished the present case from Romano and Malcolm, where the possession claims were discretionary or involved different facts linking the landlord’s reason to the tenant’s disability.

In the instant case, S did not allege that his disability caused the rent arrears or that the landlord’s possession claim was motivated by disability discrimination. The court concluded that the 1995 Act did not provide a defence to the possession claim on mandatory grounds, and no error arose in the refusal to adjourn or in the dismissal of the appeal.

The court noted the urgent need for clarification by the House of Lords on the scope of the 1995 Act in possession proceedings, highlighting the procedural history and arguments in this case as illustrative.

Holding and Implications

The appeal was DISMISSED.

The court upheld the possession order made under the mandatory grounds of the Housing Act 1988, affirming that the Disability Discrimination Act 1995 does not provide a defence to possession claims based on admitted rent arrears exceeding the statutory threshold. The refusal to grant an adjournment to investigate mental capacity or disability discrimination was not erroneous given the evidence and procedural context.

No new precedent was established by this decision. However, the judgment underscores the necessity for higher court clarification regarding the interaction between the 1995 Act and possession proceedings under the 1988 Act, particularly in cases involving disabled tenants.