Recent court rulings relating to the Equality Act assessors and proportionality in the context of possession claims by social housing landlords

The Court of Appeal has recently considered an appeal in Laidley -v- Metropolitan Housing Trust Ltd [2025] EWCA Civ 448 and the High Court has recently considered an appeal in Thiam -v- Richmond Housing Partnership [2025] EWHC 933 (KB). The judgments provide useful guidance in relation to Equality Act assessors and proportionality for housing associations seeking possession of properties.

Equality Act Assessors

In Laidley, Metropolitan Housing Trust (MHT) sought possession of Mr Laidley’s property following persistent complaints of banging. Mr Laidley defended the proceedings, arguing that possession was not reasonable or proportionate. Mr Laidley also brought a counterclaim for disability discrimination under the Equality Act 2010 (EA 2010). For the purposes of the proceedings, Mr Laidley was deemed to lack capacity and was also disabled for the purposes of section 6 of the EA 2010. This gave rise to certain procedural consequences for the proceedings. Firstly, the Official Solicitor was appointed to act on Mr Laidley’s behalf.  An Equality Act assessor was also appointed to sit with the Judge as since October 2010, there has been a presumption that any Equality Act claim relating to possession proceedings should have the benefit of a specialist assessor to sit with the judge unless “there are good reasons for not doing so”. An assessor will not make judicial decisions but advise and educate the Judge to ensure that they reach an informed decision. 

During the trial, Mr Laidley’s representative submitted that in order to ensure transparency, the Court should disclose to the parties the advice given by the assessor. The Trial Judge rejected this submission and also made an order for possession. Mr Laidley appealed to the High Court on the following grounds:

1. The Trial Judge’s ruling on the disclosure of the assessor’s advice; and
2. Mr Laidley alleged that the Trial Judge used the assessor incorrectly by seeking “advice on issues that were not within her competency, and did not seek her advice on the issues that were within her expertise and knowledge”. 

Mr Laidley’s appeal was dismissed on both grounds. The Judge drew distinction between where an assessor provides what amounts to expert evidence and where an assessor assists the Court in the evaluation of the evidence in the case. It was held that the first category could give rise to an obligation to disclose the advice to the parties whereas the second did not. Mr Laidley appealed to the Court of Appeal.

The Court of Appeal unanimously dismissed Mr Laidley’s appeal. On the first ground, LJ Stuart-Smith summarised that:

1. The role of the assessor in this case was suitably and sufficiently defined;
2. Where an assessor's contribution is to the evaluation of the evidence in the case, no obligation of disclosure would normally be required;
3. Where an assessor goes beyond contributing to the evaluation of the evidence and either (a) provides additional evidence or (b) otherwise gives rise to a new line of enquiry of which the parties had not had proper notice and a fair opportunity to respond, disclosure is required;
4. The principles set out in (ii) and (iii) represent the normal position, which may need to be adjusted in a particular case if there is a compelling reason to do so;
5. There is no reason to go behind the Judge's decision on Mr Laidley's application for disclosure or his explanation in [10]-[11] of his trial judgment; and there is no basis for any speculation that the assessor in the present case either gave evidence or otherwise gave rise to a new line of enquiry.

On the second ground, the Court held that the assistance required and sought by the judge is for the judge to determine and ultimately it will be for the judge to decide whether the contribution of the assessor is helpful or not. 

Laidley provides housing providers with useful insight into the role of an Equality Act assessor and how they contribute to possession proceedings. 

Proportionality

In Thiam, Richmond House Partnership (RHP) had sought possession on Grounds 8, 12, 13 and 14 of Schedule 2 of the Housing Acy 1988 in relation to non-payment of rent, anti-social behaviour as well as hoarding. Ms Thiam defended these proceedings, arguing that the decision to seek permission amounted to unlawful disability discrimination pursuant to section 15 of the EA 2010. The Court accepted that Ms Thiam was disabled for the purposes of the EA 2010, finding that Ms Thiam’s “wider range of delusional disorders” had contributed to the behaviour which had led to RHP’s claim for possession. The Court however considered that possession was a proportionate means of achieving legitimate aims. The legitimate aims of RHP included preventing further hoarding and also collecting outstanding rent (approximately £18,000). RHP had also referred Ms Thiam to social services. The Court therefore found that RHP had done all it reasonably could in the circumstances. Ms Thiam appealed to the High Court on the following grounds:

1. RHP did not recognise that the hoarding was a symptom of Ms Thiam’s disability as it was not referred to in the justification exercise
2. RHP had not put in place “specialist intervention”
3. RHP had not applied to the Court of Protection despite having the power and skill to do so

The High Court dismissed the appeal. 

On the first ground, the High Court found that whilst RHP had not considered any link between Ms Thiam’s actions and her disability, it was clear from their justification exercise that the decision to seek possession “was not taken without some regard to the tenant’s disability”. The first ground of appeal was therefore dismissed on the basis that whether or not RHP had considered a link, this was not central to the proportionality issue which is objective. The Court found that “RHP's state of mind as to whether the hoarding was a consequence of the tenant's disability was not a point to which any real weight attached. It could not have been determinative.”  It was more important to take into account what RHP did and what RHP might have done before deciding to seek possession.

On the second ground, the Court found that seeking possession was a proportionate means of achieving legitimate aims. RHP had demonstrated that they had attempted to support Ms Thiam. The Court opined that “it will always be possible to say that something more could have been tried” but that the proportionality test contained in section 15 of the EA 2010 should be applied in context. As a landlord, the extent of RHP’s powers and control over Ms Thiam were restricted by the terms of the tenancy agreement. The Court did not consider that the obligation to act proportionally required RHP to engage specialist help as this would “go well beyond anything ordinarily or, in the circumstances of this case, reasonably within the ambit of a landlord and tenant relationship”.  The Court guided that such interventions should be the responsibility of the social services department. The Court also took into consideration the likely cost of specialist services weighed against the “finite resources of a social landlord”. The Court also found that specialist assistance would have likely been futile as Ms Thiam was unlikely to engage.

On the third ground of appeal, the Court held that any application to the Court of Protection would have been speculative as the success of such an application would have been contingent on a conclusion that the tenant lacked capacity. However, even if the issue of capacity were overcome, it was unclear what order might have been sought by RHP. The Court found that RHP would have needed to make an application to enter premises and remove possessions which would have incurred significant expense and would have been speculative. As such, it “would go well beyond any step that could legitimately be expected of a landlord and well beyond anything that could reasonably be considered as a requirement of a proportionate approach”. The High Court therefore dismissed Ms Thiam’s appeal. 

Thiam provides welcome guidance for housing associations when seeking possession and highlights the importance of completing a comprehensive PSED assessment (proportionality assessment) before deciding to seek possession of a property. Thiam does however appear to be limited to housing associations and it should be noted that different obligations could apply in the case of local authority tenants. 

For further information, please contact Shannon Morrison or Zoe McLean-Wells.