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This article was first published in the Local Government Lawyer.

The High Court has reiterated that the burden is on the defendant to persuade the judge that there are substantive Article 8 and Equality Act issues meriting an adjournment of a possession hearing. Alexander Campbell reports.

It’s a scene which will be familiar to many housing law practitioners: a tenant turns up to a possession hearing, seeks representation from the duty solicitor, seeks to argue that there are issues of disability discrimination and human rights issues which make it necessary for proceedings to be adjourned, detailed directions to be given and a lengthy wait before arguments on the Equality Act 2010 and the Human Rights Act 1998 can be thrashed out in depth at a possession hearing.

In many cases there are of course important human rights and disability discrimination issues which judges need to allow to be fully considered and argued before a decision on whether to grant possession is reached. However in the recent decision of Viridian Housing v O'Connell [2012] EWHC 1389 (QB), the High Court emphasised the importance of tenants being able to persuade the judge at a first possession hearing that such issues exist and have substance before the judge is prepared to adjourn so that the tenant can seek representation and evidence to argue those points in depth; no longer can tenants simply assert that their case involves issues under the Equality Act 2010 and Human Rights Act 1998 and expect that the presiding judge will proceed to grant an adjournment.

In Viridian Housing v O’Connell at first instance, HHJ Knowles sitting at Wandsworth County Court in December 2011 granted a possession order under ground 8 of Schedule 2 of the Housing Act 1988 (i.e. that the defendant tenant had more than two months’ rent arrears outstanding). The tenant, Ms O’Connell, had substantial rent arrears which had accrued after her housing benefit was stopped. Her housing benefit had been stopped when her mother had died and Ms O’Connell had inherited her mother’s house, rendering her ineligible for housing benefit in respect of the property which she rented from Viridian Housing.

Ms O’Connell argued that mental health issues prevented her from being able to address this issue either by moving into her mother’s home or selling it. She therefore argued that making a possession order rather than adjourning was disproportionate (and therefore not compliant with Article 8 ECHR) and discriminatory under sections 19 and 20 of the Equality Act 2010.

Ms O’Connell sought permission to appeal from Mr Justice Tugendhat on 18 May 2012, arguing that HHJ Knowles had erred by not adjourning the hearing so that Ms O’Connell could seek specialist legal representation (rather than the duty solicitor) and expert medical evidence to run her arguments under Article 8 ECHR and the Equality Act 2010. The duty solicitor stated at the possession hearing: “…there are issues in this case which relate to public law and Article 8 issues which I do not feel able to present myself which is why I asked for an adjournment.”

Mr Justice Tugendhat, refusing permission to appeal, held that HHJ Knowles had clearly been aware that it was open to her to adjourn the proceedings if she had wished to, so that Ms O’Connell could obtain more specialist legal representation as well as medical evidence to support her claim of disability. The fact that she had chosen not to exercise that option did not render her decision and the resultant possession order appealable.

Mr Justice Tugendhat reiterated clearly that the burden is on the defendant to persuade the judge that there are substantive Article 8 and Equality Act issues which apply and which merit an adjournment. In other words a tenant cannot hope to secure an adjournment simply by asserting that there are such issues; he or she must persuade the judge that there are and that an adjournment is needed so that they can be addressed.

In reaching her decision, HHJ Knowles had referred to a previous claim involving Ms O’Connell (pre-dating the Equality Act 2010) in which it had been held that Ms O’Connell was not discriminated against under the Disability Discrimination Act 1995 by the issuing of possession proceedings.  Counsel for Ms O’Connell in the High Court argued that HHJ Knowles should have considered in detail the different test which applies under the Equality Act 2010.

Mr Justice Tugendhat however made clear that the onus is on the defendant to adduce some evidence to show that her arrears are caused by a disability, stating at paragraph 27 of his judgment: “The tests under the 1995 Act and the 2010 Act are different, but there was simply no evidence before the court upon which the Judge could have found that there was a seriously arguable case that the arrears that had accrued in 2011 were the consequence of any disability.” 
(emphasis added)

In the same vein the judgment records that Viridian Housing had criticised the lack of evidence of disability in the witness statement Ms O’Connell had prepared for the permission application. Mr Justice Tugendhat summarises the position, stating at paragraph 21 of his judgment: “For Viridian Housing it is submitted that although Ms O’Connell has been given an opportunity to file a witness statement, she has not taken that opportunity either to explain why at the time of the hearing in December 2011 she had not instructed a solicitor (as she now has), nor any evidence of her being then under a disability, nor any evidence that she is under a disability at the time of the hearing of this application.”

Viridian Housing further emphasised in its submissions that if Ms O’Connell wished to seek legal representation and expert evidence for the purposes of running Article 8 and Equality Act arguments, then she had had ample opportunity already to do so. Paragraph 26 of the judgment records: “[…]
Ms O’Connell had had ample notice of the hearing. Seven and a half weeks elapsed between the issue of the claim form on 14 October and the hearing on 7 December, in addition to the time that had elapsed between the service of the notice on 25 August and the issue of the claim form on 14 October. The duty solicitor had some six hours during the 7 December to make such enquiries and obtain such instructions as she thought fit…”

Having considered all of the above, Mr Justice Tugendhat refused Ms O’Connell permission to appeal, finding that there was no real prospect of her showing that HHJ Knowles’ decision had been wrong on the basis of the material which had been before her.

The decision emphasises the importance of tenants taking what steps they can before a first possession hearing to secure appropriate legal representation to deal with any public law defences they wish to raise, as well as obtaining appropriate supporting evidence for any disability discrimination argument. Where a tenant has had time in which they could have found such representation and evidence, they ought to have done so (or at least taken steps to have done so). Where a tenant wishes to argue that there are potential public law defences which merit an adjournment, they must be prepared to persuade the judge that such issues exist. Merely asserting that there are such issues is not enough to secure an adjournment. The decision in Viridian Housing v O’Connell is a reminder that the burden of persuasion in such cases falls squarely on the defendant. Not always can they rely on the hope of a first instance judge giving them the benefit of the doubt.

Alexander Campbell [...] acted for Viridian Housing in the possession proceedings at first instance.