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Nuisance and Mental Health

Nuisance, possession proceedings and mental health

North Devon Homes –v- Christine Brazier [2003] 22 EG 141

The landlord took possession proceedings against the tenant for breach of covenant in the tenancy agreement on grounds that she was causing a nuisance to other neighbours. Grounds 12 and 14 in schedule 2 to the Housing Act 1988 were engaged.

The tenant was suffering from a psychotic illness and claimed that she had a disability within the meaning of the Disability Discrimination Act 1995. This meant that she suffered from a “mental impairment which had a substantial and long term adverse effect on her ability to carry out normal day to day activities”. It was argued that under the Act it would be unlawful to discriminate against the defendant as a disabled person by evicting her. Therefore it could not be reasonable to make a possession order. However Recorder Turner thought that in all the circumstances of the case it would be reasonable to make an outright possession order.

This decision was overturned by Justice Steel on appeal to the High Court.

1. It was unlawful for the landlord to discriminate against the tenant by subjecting her to a “detriment” by reason of her disability under the Act.  The eviction proceedings by their very nature subjected her to a detriment.
2. The breach of the tenancy conditions was caused by the disability under the Act because the tenant could not prevent herself from behaving in the manner complained of because of her mental impairment.
3. Therefore the tenant could not be treated “less favourably” than someone who was not similarly disabled, unless this treatment could be “justified” on the basis that the eviction was “necessary” in order not to endanger the health and safety of the other residents or the disabled person herself. There was also no evidence that the defendant posed an “actual physical risk” to the other tenants.
4. The fact that the eviction could not be justified by the Act and was therefore “unlawful” was a highly relevant consideration for the judge when considering the exercise of his discretion under the 1988 Housing Act. The higher threshold for a “justified” eviction under the Act had not been made out. and it was not therefore reasonable to make a possession order.

Factors for landlords to consider when considering the use of possession proceedings against tenants with mental health problems:

1. The DDA will only apply if the tenant has a disability within the meaning of the Act. The tenant in this case was severely mentally unwell.
2. The Act will only apply if the tenant cannot help their behaviour because this is caused by their disability.
3. A landlord can still commence proceedings where it considers that these are justified i.e. where the health and safety of others are at risk or indeed that of the disabled person themselves.

Although this may appear to be a problematic decision for many Social Landlords, it is also arguably flawed.  In particular Justice Steel compared the treatment of a “disabled person” causing nuisance to the treatment of a “disabled person” who was not causing a nuisance, when the comparison should more sensibly have been made with a non disabled person causing nuisance. It is hoped therefore that this approach will be appealed in the future.