Final Step
Equality Act 2010 - Defences
Can defences relating to the Equality Act be raised in response to a claim under this Ground?
There are two different types of grounds under which the Landlord can claim possession, mandatory and discretionary:
Discretionary Grounds
Even if the Landlord proves any of the discretionary Grounds , the court must still decide whether it will be reasonable to grant possession. They will consider a variety of factors to determine reasonableness.
Mandatory Grounds
If the Landlord proves the ground and the notice and court papers are valid, the court must order possession at once. The court will not consider whether it is reasonable or not, to grant possession.
Is this Ground Discretionary or Mandatory?
This Ground is a Discretionary Ground, this means that even if the Landlord proves this Ground, the court must still decide whether it will be reasonable to grant possession. They will consider a variety of factors to determine reasonableness.
Do Defences relating to the Equality Act apply to Discretionary Grounds i.e this Ground?
The answer is yes, however, it is unlikely that such defence would be made in claims involving discretionary Grounds. The reason for the weak applicability of Human Rights and Public Law defences applying to claims involving discretionary grounds is due the fact that court is already empowered to determine whether granting possession would be reasonable, even after determining that the Grounds have been proved by the Claimant. The Court is empowered to consider arguments relating to discrimination; vulnerability; disability; effect of eviction; unjust interference with private life; disproportionate interference with the right to private life; the inability to follow proper Public Sector procedure in engaging with tenants and vulnerable individuals; acting unfairly and in disregard of proper public body procedures in brining the claim; and an unlimited set of potential factors which may make the claim for possession unreasonable. All such considerations are factors which make up the framework of Human Rights, Equality Act and Public Law defences. As such, the court by virtue of its power to withhold possession and consider its reasonableness even after the Ground have been proved, is entitled to consider an unlimited set of circumstances and factors which are likely to already be consistent with factors present under the Human Rights Act and Public Law Defences. As such, it is unlikely that a defence as such would be advanced against a claim for possession under discretionary grounds. Advancing such a defence, would only serve to designate factors which the court is already entitled to consider as part of it sweeping and general discretion to determine whether it is reasonable in all the circumstances to grant possession, even if the landlord has proved that Discretionary Ground under which he has claimed.
Nevertheless, it remains that such a defence can still be advanced in its own independent right, against a possession claim, even if made under discretionary grounds. This might happen in the following circumstances:
To shift the standard of scrutiny or introduce a parallel framework – While the court already exercises a wide discretion when assessing reasonableness, framing the tenant's defence in terms of Human Rights (Article 8 ECHR), the Equality Act or public law unlawfulness may invite the court to conduct a more structured and principled analysis of proportionality or procedural fairness, beyond the more general concept of reasonableness. This can be particularly important where there is a compelling public interest or fundamental rights concern.
Do Defences relating to the Equality Act apply to Discretionary Grounds i.e this Ground?
The answer is yes, however, it is unlikely that such defence would be made in claims involving discretionary Grounds. The reason for the weak applicability of Human Rights and Public Law defences applying to claims involving discretionary grounds is due the fact that court is already empowered to determine whether granting possession would be reasonable, even after determining that the Grounds have been proved by the Claimant. The Court is empowered to consider arguments relating to discrimination; vulnerability; disability; effect of eviction; unjust interference with private life; disproportionate interference with the right to private life; the inability to follow proper Public Sector procedure in engaging with tenants and vulnerable individuals; acting unfairly and in disregard of proper public body procedures in brining the claim; and an unlimited set of potential factors which may make the claim for possession unreasonable. All such considerations are factors which make up the framework of Human Rights, Equality Act and Public Law defences. As such, the court by virtue of its power to withhold possession and consider its reasonableness even after the Ground have been proved, is entitled to consider an unlimited set of circumstances and factors which are likely to already be consistent with factors present under the Human Rights Act and Public Law Defences. As such, it is unlikely that a defence as such would be advanced against a claim for possession under discretionary grounds. Advancing such a defence, would only serve to designate factors which the court is already entitled to consider as part of it sweeping and general discretion to determine whether it is reasonable in all the circumstances to grant possession, even if the landlord has proved that Discretionary Ground under which he has claimed.
Nevertheless, it remains that such a defence can still be advanced in its own independent right, against a possession claim, even if made under discretionary grounds. This might happen in the following circumstances:
To shift the standard of scrutiny or introduce a parallel framework – While the court already exercises a wide discretion when assessing reasonableness, framing the tenant's defence in terms of Human Rights (Article 8 ECHR), the Equality Act or public law unlawfulness may invite the court to conduct a more structured and principled analysis of proportionality or procedural fairness, beyond the more general concept of reasonableness. This can be particularly important where there is a compelling public interest or fundamental rights concern.
Equality Act 2010
Explanation
The Equality Act 2010 protects individuals from discrimination on the basis of certain protected characteristics, such as:
Disability
Race
Religion or belief
Sex
Sexual orientation
Gender reassignment
Pregnancy and maternity
Age
In possession proceedings, the most commonly raised protected characteristic is disability, especially in the context of mental health, learning difficulties, or chronic physical illness.
A social landlord (e.g., a council or housing association) — must not discriminate, harass, or victimise a tenant. More importantly, they have a positive duty under Section 149 (Public Sector Equality Duty) to have due regard to the need to:
Eliminate discrimination
Advance equality of opportunity
Foster good relations between those with and without protected characteristics
Explanation
The Equality Act 2010 protects individuals from discrimination on the basis of certain protected characteristics, such as:
Disability
Race
Religion or belief
Sex
Sexual orientation
Gender reassignment
Pregnancy and maternity
Age
In possession proceedings, the most commonly raised protected characteristic is disability, especially in the context of mental health, learning difficulties, or chronic physical illness.
A social landlord (e.g., a council or housing association) — must not discriminate, harass, or victimise a tenant. More importantly, they have a positive duty under Section 149 (Public Sector Equality Duty) to have due regard to the need to:
Eliminate discrimination
Advance equality of opportunity
Foster good relations between those with and without protected characteristics
Explanation
The Equality Act 2010 protects individuals from discrimination on the basis of certain protected characteristics, such as:
Disability
Race
Religion or belief
Sex
Sexual orientation
Gender reassignment
Pregnancy and maternity
Age
In possession proceedings, the most commonly raised protected characteristic is disability, especially in the context of mental health, learning difficulties, or chronic physical illness.
A social landlord (e.g., a council or housing association) — must not discriminate, harass, or victimise a tenant. More importantly, they have a positive duty under Section 149 (Public Sector Equality Duty) to have due regard to the need to:
Eliminate discrimination
Advance equality of opportunity
Foster good relations between those with and without protected characteristics
What does the Court have to Consider?
Unlawful Discrimination (Sections 15 & 19)
Section 15 – Discrimination Arising from Disability
This occurs when a landlord treats a disabled person unfavourably because of something that arises as a consequence of their disability, and the landlord cannot show that this treatment is a proportionate means of achieving a legitimate aim.
The protection applies even if the landlord did not intend to discriminate — what matters is the effect of their actions and whether they could have acted differently.
Example:
A physically disabled tenant is unable to maintain the cleanliness or condition of their home due to limited mobility. The landlord serves a notice seeking possession because the property has become unsanitary or damaged.
If the poor condition of the property is directly caused by the tenant’s disability, and the landlord has not considered support, adaptations, or practical assistance, the possession proceedings may amount to unlawful discrimination under Section 15 — unless the landlord can justify the eviction as proportionate.
To raise this defence, the tenant must show:
They are disabled within the meaning of the Equality Act 2010.
The reason for the eviction (e.g. property condition, arrears, behaviour) arises from their disability.
The landlord did not act proportionately, i.e., they failed to balance the impact on the tenant or explore less intrusive alternatives.
Section 19 – Indirect Discrimination
This occurs when a policy, rule, or practice that applies to everyone equally ends up putting people with a protected characteristic (such as disability) at a particular disadvantage, and the landlord cannot justify it.
Example:
A landlord has a blanket policy of only communicating once or twice, and only by letter, before starting possession proceedings.
This may disproportionately disadvantage disabled tenants — especially those with mental health conditions, learning difficulties, or literacy issues — who might struggle to engage with or understand written communication in time.
If the landlord does not consider using alternative methods (e.g., follow-up calls, home visits, or advocacy referrals) or cannot justify the limited communication strategy, the policy could be indirectly discriminatory.
Key Point:
Even when there is no intent to discriminate, a seemingly neutral policy can be unlawful if it has a disproportionately negative effect on disabled tenants and was not necessary or proportionate to the landlord’s goals.
Unlawful Discrimination (Sections 15 & 19)
Section 15 – Discrimination Arising from Disability
This occurs when a landlord treats a disabled person unfavourably because of something that arises as a consequence of their disability, and the landlord cannot show that this treatment is a proportionate means of achieving a legitimate aim.
The protection applies even if the landlord did not intend to discriminate — what matters is the effect of their actions and whether they could have acted differently.
Example:
A physically disabled tenant is unable to maintain the cleanliness or condition of their home due to limited mobility. The landlord serves a notice seeking possession because the property has become unsanitary or damaged.
If the poor condition of the property is directly caused by the tenant’s disability, and the landlord has not considered support, adaptations, or practical assistance, the possession proceedings may amount to unlawful discrimination under Section 15 — unless the landlord can justify the eviction as proportionate.
To raise this defence, the tenant must show:
They are disabled within the meaning of the Equality Act 2010.
The reason for the eviction (e.g. property condition, arrears, behaviour) arises from their disability.
The landlord did not act proportionately, i.e., they failed to balance the impact on the tenant or explore less intrusive alternatives.
Section 19 – Indirect Discrimination
This occurs when a policy, rule, or practice that applies to everyone equally ends up putting people with a protected characteristic (such as disability) at a particular disadvantage, and the landlord cannot justify it.
Example:
A landlord has a blanket policy of only communicating once or twice, and only by letter, before starting possession proceedings.
This may disproportionately disadvantage disabled tenants — especially those with mental health conditions, learning difficulties, or literacy issues — who might struggle to engage with or understand written communication in time.
If the landlord does not consider using alternative methods (e.g., follow-up calls, home visits, or advocacy referrals) or cannot justify the limited communication strategy, the policy could be indirectly discriminatory.
Key Point:
Even when there is no intent to discriminate, a seemingly neutral policy can be unlawful if it has a disproportionately negative effect on disabled tenants and was not necessary or proportionate to the landlord’s goals.
Unlawful Discrimination (Sections 15 & 19)
Section 15 – Discrimination Arising from Disability
This occurs when a landlord treats a disabled person unfavourably because of something that arises as a consequence of their disability, and the landlord cannot show that this treatment is a proportionate means of achieving a legitimate aim.
The protection applies even if the landlord did not intend to discriminate — what matters is the effect of their actions and whether they could have acted differently.
Example:
A physically disabled tenant is unable to maintain the cleanliness or condition of their home due to limited mobility. The landlord serves a notice seeking possession because the property has become unsanitary or damaged.
If the poor condition of the property is directly caused by the tenant’s disability, and the landlord has not considered support, adaptations, or practical assistance, the possession proceedings may amount to unlawful discrimination under Section 15 — unless the landlord can justify the eviction as proportionate.
To raise this defence, the tenant must show:
They are disabled within the meaning of the Equality Act 2010.
The reason for the eviction (e.g. property condition, arrears, behaviour) arises from their disability.
The landlord did not act proportionately, i.e., they failed to balance the impact on the tenant or explore less intrusive alternatives.
Section 19 – Indirect Discrimination
This occurs when a policy, rule, or practice that applies to everyone equally ends up putting people with a protected characteristic (such as disability) at a particular disadvantage, and the landlord cannot justify it.
Example:
A landlord has a blanket policy of only communicating once or twice, and only by letter, before starting possession proceedings.
This may disproportionately disadvantage disabled tenants — especially those with mental health conditions, learning difficulties, or literacy issues — who might struggle to engage with or understand written communication in time.
If the landlord does not consider using alternative methods (e.g., follow-up calls, home visits, or advocacy referrals) or cannot justify the limited communication strategy, the policy could be indirectly discriminatory.
Key Point:
Even when there is no intent to discriminate, a seemingly neutral policy can be unlawful if it has a disproportionately negative effect on disabled tenants and was not necessary or proportionate to the landlord’s goals.
Failure to Make Reasonable Adjustments (Section 20)
Section 20 imposes a duty on landlords to make reasonable adjustments for disabled tenants to avoid placing them at a substantial disadvantage in comparison with non-disabled tenants. This duty applies to how procedures are carried out, how information is communicated, and how policies are applied.
Example:
A tenant has a disability that causes difficulty in reading or understanding written text, such as dyslexia or a cognitive processing disorder. If the landlord sends only formal written communications about arrears or eviction without offering support — such as a follow-up phone call, simplified text, or assistance from a third party — this may place the tenant at a substantial disadvantage.
Failing to adjust communication methods in this context could breach the duty to make reasonable adjustments.
Other examples of reasonable adjustments include:
Providing letters in easy-read or audio format
Allowing a support worker or advocate to communicate on the tenant’s behalf
Offering more time or flexibility for responses, repayment, or engagement
What counts as “reasonable” depends on the specific circumstances — including the tenant’s needs, the landlord’s resources, and whether the adjustment would prevent the disadvantage effectively.
Failure to Make Reasonable Adjustments (Section 20)
Section 20 imposes a duty on landlords to make reasonable adjustments for disabled tenants to avoid placing them at a substantial disadvantage in comparison with non-disabled tenants. This duty applies to how procedures are carried out, how information is communicated, and how policies are applied.
Example:
A tenant has a disability that causes difficulty in reading or understanding written text, such as dyslexia or a cognitive processing disorder. If the landlord sends only formal written communications about arrears or eviction without offering support — such as a follow-up phone call, simplified text, or assistance from a third party — this may place the tenant at a substantial disadvantage.
Failing to adjust communication methods in this context could breach the duty to make reasonable adjustments.
Other examples of reasonable adjustments include:
Providing letters in easy-read or audio format
Allowing a support worker or advocate to communicate on the tenant’s behalf
Offering more time or flexibility for responses, repayment, or engagement
What counts as “reasonable” depends on the specific circumstances — including the tenant’s needs, the landlord’s resources, and whether the adjustment would prevent the disadvantage effectively.
Failure to Make Reasonable Adjustments (Section 20)
Section 20 imposes a duty on landlords to make reasonable adjustments for disabled tenants to avoid placing them at a substantial disadvantage in comparison with non-disabled tenants. This duty applies to how procedures are carried out, how information is communicated, and how policies are applied.
Example:
A tenant has a disability that causes difficulty in reading or understanding written text, such as dyslexia or a cognitive processing disorder. If the landlord sends only formal written communications about arrears or eviction without offering support — such as a follow-up phone call, simplified text, or assistance from a third party — this may place the tenant at a substantial disadvantage.
Failing to adjust communication methods in this context could breach the duty to make reasonable adjustments.
Other examples of reasonable adjustments include:
Providing letters in easy-read or audio format
Allowing a support worker or advocate to communicate on the tenant’s behalf
Offering more time or flexibility for responses, repayment, or engagement
What counts as “reasonable” depends on the specific circumstances — including the tenant’s needs, the landlord’s resources, and whether the adjustment would prevent the disadvantage effectively.
Breach of Public Sector Equality Duty (Section 149)
This duty applies to public sector landlords, such as local councils or housing associations. Under Section 149, these landlords must, at the time of making decisions (like issuing a notice or starting possession proceedings), have due regard to the need to:
Eliminate unlawful discrimination
Advance equality of opportunity for disabled people
Foster good relations between disabled and non-disabled people
Example:
A family is facing eviction from council housing, and one of the children has a significant disability requiring proximity to a specialist school and regular care from local services. The council proceeds with possession action without assessing the effect eviction would have on the child.
This may be a breach of the Public Sector Equality Duty, as the landlord failed to properly consider the impact on a disabled household member before deciding to act.
Important Points:
This is a procedural duty — landlords must engage in meaningful consideration before acting, not merely after the fact.
A failure to demonstrate compliance with this duty can lead the court to halt proceedings or scrutinise the fairness of the landlord’s actions more closely.
Breach of Public Sector Equality Duty (Section 149)
This duty applies to public sector landlords, such as local councils or housing associations. Under Section 149, these landlords must, at the time of making decisions (like issuing a notice or starting possession proceedings), have due regard to the need to:
Eliminate unlawful discrimination
Advance equality of opportunity for disabled people
Foster good relations between disabled and non-disabled people
Example:
A family is facing eviction from council housing, and one of the children has a significant disability requiring proximity to a specialist school and regular care from local services. The council proceeds with possession action without assessing the effect eviction would have on the child.
This may be a breach of the Public Sector Equality Duty, as the landlord failed to properly consider the impact on a disabled household member before deciding to act.
Important Points:
This is a procedural duty — landlords must engage in meaningful consideration before acting, not merely after the fact.
A failure to demonstrate compliance with this duty can lead the court to halt proceedings or scrutinise the fairness of the landlord’s actions more closely.
Breach of Public Sector Equality Duty (Section 149)
This duty applies to public sector landlords, such as local councils or housing associations. Under Section 149, these landlords must, at the time of making decisions (like issuing a notice or starting possession proceedings), have due regard to the need to:
Eliminate unlawful discrimination
Advance equality of opportunity for disabled people
Foster good relations between disabled and non-disabled people
Example:
A family is facing eviction from council housing, and one of the children has a significant disability requiring proximity to a specialist school and regular care from local services. The council proceeds with possession action without assessing the effect eviction would have on the child.
This may be a breach of the Public Sector Equality Duty, as the landlord failed to properly consider the impact on a disabled household member before deciding to act.
Important Points:
This is a procedural duty — landlords must engage in meaningful consideration before acting, not merely after the fact.
A failure to demonstrate compliance with this duty can lead the court to halt proceedings or scrutinise the fairness of the landlord’s actions more closely.
FAQ
FAQ
Evidence, Hearing Outcomes, and Defence Implications
Still have questions? We've got answers.
What evidence is required?
To raise an Equality Act defence, the tenant will usually need to provide:
Medical Evidence: diagnosis, treatment history, how the condition affects day-to-day activities
Causal Link: proof that the behaviour triggering the eviction (e.g., arrears, nuisance, property condition) arose because of the disability
Disproportionate Impact: showing that the eviction disproportionately affects the tenant or that less intrusive alternatives were available
Failure to Consider Alternatives: evidence that the landlord didn’t engage with social services, mental health teams, or support plans before acting
This may involve GP letters, care plans, social worker reports, or statements from support workers.
What evidence is required?
What evidence is required?
What are the effects on the present hearing?
What are the effects on the present hearing?
What are the effects on the present hearing?
What are the potential effects if the defence is successful?
What are the potential effects if the defence is successful?
What are the potential effects if the defence is successful?
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Achieve efficient support by using
our Step-by-Step Legal Guides and AI Assistant.
Achieve effective, efficient and actionable legal support with TenantShield.
Achieve efficient support by using
our Step-by-Step Legal Guides and AI Assistant.