Trinity Housing Barrister Summary of Nightingale & Anor v Bromford Housing Association Ltd [2024]

Trinity Social Housing Law barrister, Henry Percy-Raine has prepared the following summary of the recent High Court case of Nightingale & Anor v Bromford Housing Association Ltd [2024] EWHC 136 (KB).

This was an appeal against a possession order made against Mr and Mrs Nightingale. The issues on appeal considered the causation test in section 15 of the Equality Act 2010 and relevant considerations of a proportionality defence.

The Facts

Mr and Mrs Nightingale and their children had since 2013 been tenants in a property owned by Bromford. After incidents of anti-social behaviour and complaints of criminal behaviour, Bromford decided in late 2018 not to offer renewal of their tenancy. One of their children(C), who was responsible for a number of the incidents of anti-social behaviour, had ADHD which caused him to behave anti-socially. In April 2019, a s.21 notice was served and possession proceedings subsequently commenced.

In a PSED assessment dated 23 January 2020, Bromford referred to C’s diagnoses of ADHD and learning difficulties and stated in the possession proceedings it would “no longer rely on the allegations against C”; rather, the “action brought is in respect of the Defendants and the other children”.

The trial was delayed by Covid-19 until January 2022. Bromford did not seek to update its evidence beyond January 2020. The trial judge allowed the claim and made an order for possession.

The Appeal

The first ground of appeal related to whether the trial judge misapplied the causation tests in s.15 when considering whether C’s anti-social behaviour materially influenced Bromford’s decision to seek possession.

At trial, it was accepted that C was disabled and that his acts of anti-social behaviour were something arising as a consequence of his disability. It was found that Bromford could reasonably have been expected to know of his disability by May 2018. The issue was whether by bringing possession proceedings they treated C unfavourably.

The trial judge found that C’s anti-social behaviour was a factor that contributed to the decision of Bromford to seek possession. Nevertheless, the judge went on to find the service of the notice to quit was not significantly influenced by C’s anti-social behaviour but reflected broader conduct of the wider family [34].

On appeal, this decision was reversed. According to the trial judge’s findings, C’s behaviour had a significant influence on the outcome. It was highlighted on appeal that it does not follow as the decision to seek possession was made for broader reasons than just C’s anti-social behaviour, that his anti-social behaviour played no significant role in the decision [37].

The second ground of appeal related to the defence of justification under section 15(1)(b) of the Act. The Nightingales contended that the judge ought to have excluded the effect of C’s behaviour in the assessment of proportionality. This ground of appeal was unsuccessful since C’s behaviour was found on appeal to have materially influenced Bromford’s decision to seek possession, the trial judge was right to include C’s behaviour in the assessment of proportionality [43].

The third ground of appeal related to the trial judge’s failure to assess Bromford’s justification defence as at the factual position at the date of the trial. The key point was that there was no evidence before the Court of any anti-social behaviour by the Nightingales in the two years pre-trial. If there had been incidents, Bromford had not sought to evidence them. On the evidence at trial, there was prima facie a change of circumstances in that there were no incidents of reported anti-social behaviour since the end of 2019. The Judge however did not address that point and instead focused on incidents that occurred up to the end of 2019. This ground of appeal was successful; to determine whether the notice to seek possession remains lawful, i.e. proportionate within section 15(1)(b) of the Act, the Court needs to consider the up-to-date evidential position [58].

Overall, the possession order was set aside and the case was remitted back for further consideration of the proportionality defence in light of the up-to-date evidential position as of the date of the hearing on remission.