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The case of North Devon Homes v Brazier concerned an appeal by the tenant, Brazier, against an order of possession of the residential premises.
Brazier was a problematical tenant, who demonstrated unbalanced, antagonistic and anti-social behaviour and had brought about nuisance in her neighbourhood. for that reason, North Devon Homes Ltd served notice on Brazier, under the Housing Act 1988, by virtue of section 8.
There was no doubt that her behaviour breached her tenancy agreement which contained a covenant to use the premises so as to ensure that no nuisance, annoyance, inconvenience or harassment was caused to neighbours or the public. It was accepted by the court that the tenant's behaviour was a direct result of her mental impairment and a psychiatric report referred to her suffering from a psychotic illness, possibly schizophrenia. As such, the court concluded that the tenant was disabled within the meaning of the Disability Discrimination Act 1995.
The judge approved the order of possession on the basis that it was not acceptable for other tenants to have to tolerate Brazier's conduct any more. Indeed one of the neighbours said that the abuse and noise was wearing her down. Brazier was formerly re-housed and there was, on that basis, little chance of Brazier's improvement. For that reason, it was improper to permit the 1995 Act, to override the discretion presented by the section 7 of 1988 Act, to make a demand, where it was believed sufficient to do so. Brazier appealed the resolution, arguing that the judge had failed to have any or, adequate consideration to the truth that North Devon Homes was in violation of the 1995 Act, in seeking to evict Brazier.
Section 22 of the 1995 Act states that it is unlawful to regard a disabled person less favourably, for a motivation which correlated to the disabled person's disability, than others to whom the motivation did not relate, unless that treatment was reasonable. The treatment could be deemed reasonable, if it was essential in order not to jeopardize the health and safety of any other person. North Brazier Homes contended that: they did not consider Brazier less favourably than others since any other tenant acting as Brazier had done, would have been regarded in the same way, and; that if North Devon Homes did discriminate against Brazier, the discrimination was defensible in order not to jeopardize the heath and safety of any other person, that is Brazier's neighbours.
The sources of statute and case law on which the decision is based are plentiful. The Housing Act 1988 states that: The court shall not make an order for possession of a dwelling-house let on an assured tenancy except on one or more of the grounds set out in Schedule 2 to this Act. The claim was for possession based on nuisance under Ground 2 of Sch 2 to the Housing Act 1985. Section 22 of Disability Discrimination Act reads: it is unlawful for a person with power to dispose of any premises to discriminate against a disabled person in the terms on which he offers to dispose of those premises to the disabled person. From this starting point, the reasons why are addressed.
Under s22(3)(c) of the Disability Discrimination Act 1995, it is unlawful to discriminate against a disabled person "by evicting the disabled person or subjecting him to any other detriment". Discrimination occurs if "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 or would not apply and he cannot show that the treatment in question is justified". There are precise grounds in s24 of the Act that can be employed to validate discrimination.
The one quoted in this case was danger to "the health or safety of any person," by virtue of s24(3)(a). Section 25 of the Act was quoted, in order to reveal the issues of enforcement, remedy and procedure: '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.' Section 3 of the Human Rights Act 1998 was also used in this case t argue that: So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
The most important points of law in relation to the instant case shall now be described. Section 1 (1) of the Crime and Disorder Act 1998 defines anti-social behaviour as a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as the complainant. The Disability Discrimination Act, effectively describes disability discrimination. It aims to end the discrimination which many disabled people face, giving disabled people rights in the areas of: employment; access to goods, facilities and services, and in the instant case; buying or renting land or property. Disabled people support a definition which recognises that discrimination is based on stigma and social limits and which recognises that it is the experience of discrimination which is the matter not the degree of impairment. The definition is significant because it sets the tone for the entire law. This viewpoint of a disability, consequently recognises that the cause of disability does not lie within the individual but the way in which society is organised. This effectively is disability discrimination.
In light of the provisions of statute law discussed above, it was held, allowing the appeal in North Devon Homes v Brazier, that the eviction was unlawful and was not warranted by explanation of the particular circumstances set out in the Disability Discrimination Act 1995. The High Court did appreciate that the tenant's condition was unlikely to recover and that her neighbours should not have to continue to suffer her behaviour. Nevertheless, the court felt that the eviction of her was not justified as the 1995 Act furnishes its own code for justified eviction which requires a higher threshold and that on the facts of this case, the landlord had acted unlawfully and an eviction was not justified. The matter was one of fact, being whether the breach of the tenancy terms was produced by the disability. Of it was then that Brazier could not be regarded less satisfactorily than someone who was not similarly disabled.
The prevalence of Brazier's unsettling conduct was attributable to her mental illness, which shaped her disability. For that reason, Brazier was being evicted because of that disability, which was illegitimate, and there was no evidence that North Devon Homes had ever produced the judgment that the discrimination was warranted in order not to jeopardize the health and safety of any person, and there was no evidence of Brazier being a genuine physical risk to another person. Brazier's eviction was consequently not warranted by the terms of the 1995 Act. The Judge also believed there was no value in a suspended possession order.
This case reveals the significance of the 1995 Act for housing providers, especially as it seems that it may present disabled people with a complete defence to actions in nuisance.
The case could produce substantial complexity for specialist housing providers who provide for those with mental health problems and may even dissuade housing providers from supplying accommodation to this section of society. The case is hence important because it establishes that 'uncomfortableness' is not good enough justification for discrimination, in the case due to disability-related behaviour; there would have to be a risk to health and safety.
Landlords in search of possession orders against tenants with mental health problems who are triggering nuisance need to therefore advance with caution. Landlords could otherwise find themselves unlawfully discriminating against disabled tenants. Under the Disability Discrimination Act 1995 landlords pursuing action against tenants with mental health problems need primary to deliberate if the nuisance is concurrent in whole or in part to the tenant's circumstance. If so, then the landlord needs to validate his or her proceedings. The 1995 Act states that issuing proceedings in such conditions against disabled tenants can only be warranted if the action is essential in order not to imperil the health and safety of the neighbours. In North Devon Homes v Brazier, The High Court found that North Devon Homes had not contemplated the tenant's disability and, even though the neighbours suffered substantial distress, their health and safety was not endangered. This left the tenant in pursuit of the property producing nuisance to the neighbours and North Devon Homes incapable to take proceedings. This consideration has now been evened out somewhat by the case of Manchester City Council v Romano.
In this illustration the Court of Appeal decided that health and safety had to be agreed a wider definition so as to attribute significance of the 1995 Act. Proceedings can be defensible against nuisance tenants with mental health problems if the landlord can demonstrate that neighbours have experienced in some pertinent way, such as stress, depression or loss of sleep. Medical evidence, if obtainable, should be used to assist the landlord's actions. Where proceedings are delivered in comparable situations, in order to validate the eviction, landlords may have to order a medical expert to account on the degree of the Defendant's disability, that they are they disabled within the meaning of the Disability Discrimination Act, whether or not the anti social behaviour displayed is without a doubt constant with their illness, whether or not the Defendant can manage it and whether or not the Defendant is liable to be a genuine threat to themselves and or their neighbours.
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Landlords may also wish to acquire medical evidence as to the influence of the Defendant's actions on their neighbours health. Simply when such evidence is obtainable will the court be in a place to deliberate the broad facts and the question of reasonableness. That being the situation, such possession behaviour will now be won or lost on the force of the medical evidence. While the Secretary of State does have the influence under the 1995 Act to make Regulations under the Act to excuse an act which would or else amount to discrimination from being treated as unlawful, demonstrations would need to be made as to the consequence of this conclusion on the Governments schedule on confronting anti social behaviour and in any consequence, it would take some time for such Regulations to be made. To this end, although social workers and service users may experience conflict, they can work together.
North Devon Homes might decide in the future, after concluding an appropriate appraisal of the circumstances in agreement with the 1995 Act, that the health and safety of Brazier's neighbours were discriminatory by Brazier's behaviour and that steps should be employed to evict Brazier on that base. Part two of the Anti Social Behaviour Act 2003 came into force after this case. It has introduced changes, including modifications to the Housing Act 1996. This could assist landlords in doing more to control violence, harassment, including racial harassment and nuisance. Under the new provisions, landlords need only prove that a person's behaviour is 'capable' of causing nuisance and annoyance.
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