Thanks to Karen Jackson of didlaw for preparing this case summary
Is the proportionality test under sections 15 and 35(1)(b) of the Equality Act 2010 the same as the test under Article 8 of the European Convention on Human Rights?
No, held the Supreme Court in a unanimous decision dismissing Akerman-Livingstone v Aster Communities Limited, a housing repossession case brought by Shelter with intervention by the EHRC.
Under section 35(1)(b) of the Equality Act eviction is unfavourable treatment for the purposes of section 15. Article 8 of the European Convention on Human Rights protects the right to respect for a person's home.
The Appellant suffered from severe chronic PTSD which was a disability. The Respondent sought repossession of the Appellant's flat following repeated offers (eleven) to rehouse him. His inability to move arose from disability. The Supreme Court agreed with the Court of Appeal that the housing association had discharged its duty to accommodate under s.193(2) of the Housing Act 1996 but that the first instance decision had incorrectly failed to consider proportionality under the Equality Act. No landlord is entitled to evict a disabled tenant because of something arising in consequence of disability unless he can show eviction to be a proportionate means of achieving a legitimate aim.
Lady Hale would have allowed the appeal to give full consideration to the proportionality test under the Equality Act test but opined that there would be no kindness to the Appellant to prolong matters further since a possession order would inevitably ensue. The other Lords agreed that a different approach to proportionality under the Equality Act was required and that it was wrong to equiparate Article 8 and s.35(1)(b). The housing authority had gone out of its way to accommodate the Appellant and needed possession to allow it to meet its obligations under the Housing Act. This would constitute a proportionate means of achieving a legitimate aim.