The recent Court of Appeal case of Thiam v Richmond Housing Partnership (2025) EWHC 933 (KB), considered the issue of proportionality when seeking possession against a disabled tenant and the outcome provides useful clarification on the position for landlords. 

The landlord in this case, Richmond Housing Partnership (RHP), sought possession against their assured tenant, Mrs Thiam. Possession was sought on grounds 8, 12, 13 and 14 of Schedule 2 Housing Act 1988. RHP sought to establish that the grounds had been met on the following basis: 

• Ms Thiam had accumulated rent arrears in the region of £18,000.
• Ms Thiam had failed to permit access to the property for the purpose of inspections and/or repairs.
• The condition of the property had deteriorated due to waste and neglect/default. This was evidenced by photographs of the property. Ms Thiam was hoarding items in the property.
• The front and rear gardens were overgrown and unkempt vegetation, with an abundance of black bags and discarded household items were present. These were smelly and attracted vermin. 
• Ms Thiam’s son engaged in anti-social behaviour at the property. 

Ms Thiam was determined to lack litigation capacity (ability to conduct legal proceedings), resulting in the Official Solicitor being appointed to act on her behalf. An expert report was obtained which concluded that Ms Thaim had a disability, and her disability was causally linked to the issues in the proceedings, and therefore the Equality Act 2010 applied.  

Within these proceedings, Ms Thiam submitted a defence and counterclaim based on disability discrimination. Ms Thiam asserted that possession in this claim was discriminatory and disproportionate, by reference to  S.15 Equality Act 2010.

In the County Court, His Honourable Judge Luba KC granted a possession order, having been satisfied that all four pleaded grounds had been met on the evidence. When considering Ms Thiam’s disability, HHJ Luba KC found that Ms Thiam suffered from a ‘wider range of delusional disorders associated with her schizophrenia’. It was concluded that these disorders were causally linked to Ms Thiam’s conduct, on which this claim for possession was based. However, in granting a possession order, Judge Luba found RHP was pursuing a legitimate aim and was proportionate in doing so. 

This decision was appealed. 

The appeal can be summarised as follows, by reference to Ms Thaim’s main arguments and the court’s response: 

1. The landlord (RHP) did not, when commencing the possession proceedings,   recognise that Ms Thiam’s hoarding was a symptom of her disability.

It was alleged that RHP, when justifying their actions in seeking possession, had not addressed Ms Thiam’s disability expressly. 

The Court of Appeal determined that proportionality is objective and is an issue of substance, not process. Therefore, it did not matter what process the Landlord went through when considering the issue of proportionality. What mattered was whether, objectively, the claim was proportionate. 

On that basis, this ground did not succeed. (Note this is entirely different to whether a Landlord has considered its Public Sector Equality Duty under the Equality Act 2010 – which is a matter of process as well as substance). 

2. The landlord had not put in place ‘specialist intervention’.

When considering this ground, it was noted that RHP had taken considerable steps to involve different agencies, including social services. The Court of Appeal did not consider that, as part of the obligation in section 15(1)(b) of the Equality Act 2010 to act proportionately, RHP had to engage with specialist help for Ms Thiam. In fact, doing so was determined to go ‘well beyond’ what can be reasonably expected from the landlord and tenant relationship. It was relevant that the landlord had finite resources and such a speciality intervention was incredibly costly.  It was noted that, had RHP taken this step, it would have likely been met with disengagement by Ms Thiam in any event. This ground did not succeed.

3. The landlord had not made an application to the Court of Protection, despite having the ability to do so.

In the initial proceedings, Jude Luba has taken the view that RHP did not have the skills and resources to produce an assessment of capacity and make an application to the Court of Protection. The Court of Appeal agreed with this view, noting that any such application to the Court of Protection would have been ‘speculative’ and would have resulted in RHP incurring costs. RHP could not be expected to make this application as a requirement prior to seeking possession, for purposes of establishing proportionality. This ground did not succeed.

Accordingly, Ms Thiam’s appeal was dismissed. 

This case offers useful guidance on a landlord’s obligation to act proportionately when seeking possession against a disabled tenant: 

• Proportionality is an issue of substance and not process. It follows that, where there is no proportionality assessment conducted by a landlord, seeking possession can still be proportionate based on the landlord’s actions. It is a matter for the court to determine. 
• Clearly there is still practical value in Landlords considering the issue of proportionality before issuing a possession claim, and we strongly encourage this to assist in deciding whether it is right to pursue the claim and to facilitate submissions on the issue of proportionality to be made in the proceedings. However, failure to do so will not mean a claim fails on the issue of proportionality alone. 
• Remember that this point does not apply to a Landlord having to consider it’s Public Sector Equality Duty when taking legal action against a disabled tenant. 
• Landlords do not have an obligation to make an application to the Court of Protection prior to seeking possession in order to satisfy the issue of proportionality. 
• Landlords are not required to engage with specialist help for their tenants in order to be proportionate. Interventions of this manner should be the responsibility of social services, not the landlord.