Trinity Housing Barrister Summary of Royal Borough of Kingston Upon Thames v Khan & Anor [2023]

Facts

In 2010, the first defendant, Ms Khan was granted a tenancy by the claimant of a one-bedroom flat in Surrey. In October 2019, the landlord received information that the flat was unoccupied. An investigation concluded that Ms Khan was not occupying the flat but, in fact, lived at her previous address. In May 2021, she was served with a notice to quit. It expired four weeks later on 13 June 2021. The claim for possession was brought both against Ms Khan and her adult son as he was residing in the flat, although he played no part in the proceedings.

Judgment

The case involved a dispute of fact as to whether Ms Khan was occupying the flat as her only or principal home on 13 June 2021 when the notice to quit expired. The case was also defended on provisions under the Equality Act 2010 and public law grounds.

The evidence supporting the claim that Ms Khan did not occupy the flat was considered to be ‘overwhelming’ and demonstrated that she had not resided at the flat long before June 2021 [87]. A wide canvas of evidence supported this finding which included housing officer inspections, observations from workman/contractor visits of the flat, a neighbour’s nuisance complaints against her son being at the flat, bank and credit cards registered to her former address, and an absence of any corroborative evidence from her son. The Court accordingly found that at the time the notice expired she had only one home and that was not the flat [88].

Drawing the strands of evidence together as to occupation, HHJ Luba said [90]:

“[I]it is difficult to understand how this issue has been disputed down to trial. The case advanced  by the council is, on any view, quite overwhelming. It seems that Ms Khan must have thought that there was at least some last vestige of a chance that she could ‘pull it off’ i.e., keep the flat  as a free home for Rashad and/or buy it cheaply. How those advising her thought that she might have a prospect of success on this issue in the absence of any evidence … I cannot imagine. Yet more surprising is that the Legal Aid Agency agreed to fund the defence on this point.”

The public law defence primarily concerned an alleged failure by the landlord to have regard to its public sector equality duty under section 149 of the 2010 Act by serving the notice on Ms Khan and thereafter commencing the possession proceedings. In view of Ms Khan already having a home where she resided which was not the flat, she would face no difficulty by reason of an eviction. In contrast, if recovered the council could re-let the flat which was in short supply. The council was evidently not in breach of s.149 in taking such a course in this case [98].

The Equality Act defence was also not successful. It was accepted that Ms Kahn had the protected characteristic for the purposes of section 6 of the Equality Act 2010. The causal link, however, was not established to support the pleaded instances of s.13 direct discrimination and s.15 disability as no medical evidence supported that such language and behaviour on her part were manifestations of her disability or in some way relatable to her disability [103].

As to s.19 indirect discrimination, there were difficulties in establishing evidence of some additional or more onerous practice adopted by the council, identifying appropriate comparators, the disadvantage to Ms Kahn [109-111]. In any event, the landlord would have proven that eviction was a proportionate means of achieving a legitimate aim – recovering social housing from a person not living it in to give to a more necessitous person who would live in it [112].

Accordingly, the landlord’s possession claim was properly established and the counterclaim was dismissed.