Editor's note: This brief was summarised by The Property AI Newsroom from a report by Property118. Read the original article for full details.

Section 8 Possession Claims Face New Risks from Disability Discrimination Defence

Landlords seeking possession under Section 8 may increasingly encounter disability discrimination defences, according to a report by Property118. The Equality Act 2010 allows tenants to argue that rent arrears or anti-social behaviour are linked to a disability, requiring courts to consider whether eviction is a proportionate response.

Most landlords are aware that the abolition of Section 21 has shifted the focus to Section 8 grounds for possession. However, many remain unaware that disability discrimination can be raised as a defence or as a counterclaim for damages in possession proceedings.

The Equality Act 2010 defines disability broadly, covering both physical and mental impairments that have a substantial and long-term impact on daily activities. This can include conditions such as ADHD, mental health issues, and long-term illnesses. Medical evidence is often presented to support such claims, and challenging this evidence can be costly.

Courts are not limited to considering whether rent arrears or anti-social behaviour exist. They may also examine whether the landlord took reasonable steps before seeking possession, such as contacting the tenant, exploring repayment plans, or arranging direct payment of benefits. The court may question if possession was the only reasonable course of action, even if the landlord did not intend to discriminate.

A County Court case discussed in the report, Radcliffe and Paterson (March 2020), highlights the potential consequences. In this case, the landlords sought possession on the basis of rent arrears exceeding £8,000. The tenant counterclaimed for failure to provide prescribed tenancy information, disrepair, and disability discrimination. The court awarded the tenant nearly £9,000 in total, offsetting the arrears and leaving the landlords owing the tenant almost £1,000. The court also found it unreasonable to grant a possession order, accepting medical evidence that the arrears were linked to the tenant’s health conditions.

Letting agents and inventory clerks should be aware of these developments, as they may affect the risks and processes involved in possession claims under Section 8.