Most landlords understand that the abolition of Section 21 has fundamentally changed the possession process.
What many don’t yet appreciate is that another challenge may become increasingly common as more landlords rely on Section 8 grounds for possession: disability discrimination.
According to barrister Sonia Rai, speaking with Paul Shamplina of Landlord Action, in the article How the Equality Act 2010 is reshaping eviction strategy in the post-Section 21 landscape, many private landlords remain unaware of how disability discrimination can be raised as a defence to possession proceedings or as a counterclaim for damages.
With Section 21 now gone and landlords relying more heavily on rent arrears and anti-social behaviour grounds, she believes these arguments are likely to become far more common.
If she’s right, it could significantly change the risks involved in taking possession action.
Why landlords should pay attention
Many landlords assume that if a tenant owes enough rent, or if the evidence of anti-social behaviour is strong, possession will simply follow.
Unfortunately, it isn’t always that straightforward.
Under the Equality Act 2010, tenants who have a disability may argue that the rent arrears or behaviour leading to possession arose because of that disability.
The court must then consider whether seeking possession is a proportionate means of achieving a legitimate aim, or whether there were other reasonable steps the landlord could have taken first.
The definition of disability is also much broader than many landlords realise. It covers physical and mental impairments that have a substantial and long-term impact on day-to-day activities and may include conditions such as ADHD, mental health conditions and many long-term illnesses.
Medical evidence is frequently produced to support these claims and, as discussed in the podcast, obtaining expert evidence to challenge them can itself become expensive.
It’s not just about discrimination
One of the most important points raised in the discussion is that landlords do not have to discriminate for problems to arise intentionally.
Instead, the court may ask questions such as:
- Did the landlord try to understand why the rent arrears had developed?
- Did they contact the tenant to discuss what was happening?
- Could direct payment of benefits have been arranged?
- Could a repayment plan have been explored?
- Would a discretionary possession claim have been more appropriate than relying solely on a mandatory ground?
In other words, the court may look beyond the existence of the arrears themselves and examine whether possession was the only reasonable course of action.
The case every landlord should know about
A case discussed during the podcast illustrates just how dramatically a possession claim can change.
In Radcliffe and Paterson, heard in the County Court in March 2020, the landlords sought possession using Grounds 8, 10 and 11 after rent arrears exceeded £8,000.
On the face of it, the claim appeared straightforward. It wasn’t.
Miss Paterson responded with three counterclaims:
- damages for failure to provide the prescribed tenancy information;
- damages for disrepair;
- damages for disability discrimination.
The court awarded:
- £2,850 for the prescribed information breach;
- £3,907 for disrepair (including the usual uplift);
- £2,000 for disability discrimination.
The total award came to just under £9,000 so instead of Miss Paterson owing the landlords more than £8,000 in rent arrears, they ended up owing her almost £1,000.
The court also decided it would be unreasonable to make a possession order.
The court accepted medical evidence showing that Miss Paterson’s rent arrears had arisen as a consequence of her various health conditions. Importantly, it also concluded that seeking possession on a mandatory basis was disproportionate because the landlords had other options available.
These included requesting direct payment, arranging a meeting with the tenant and considering a discretionary approach before issuing proceedings.
In addition, landlords who lose possession proceedings or significant elements of them may also become liable for legal costs, depending on the court’s decision.
Future awards could be much higher
Perhaps the most sobering point raised by Sonia Rai was that the £2,000 disability discrimination award in the Paterson case may now be considered relatively modest.
Compensation for discrimination is assessed using the Vento guidelines. From April 2025, the lowest band ranges from £1,200 to £12,100, with middle-band awards reaching £36,400, and the most serious cases attracting awards of up to £60,700.
That does not mean every successful claim will attract damages anywhere near those figures. It does, however, illustrate that discrimination claims have the potential to become significantly more expensive than many landlords realise.
An Alternative Option: Voluntary Deed of Surrender
An interesting example of this approach appeared recently on Property118.
Responding to a landlord whose HMO tenant had built up significant rent arrears, Landlord Sales Agency’s David Coughlin suggested something that many landlords instinctively dislike: the benefits of negotiation and arranging a voluntary Deed of Surrender before rushing into court.
That might mean agreeing to write off part of the arrears, helping the tenant relocate or offering a financial incentive if it brings the matter to a conclusion more quickly.
At first glance, that advice can seem counterproductive. However, viewed alongside the Radcliffe and Paterson case, the reasoning becomes much clearer.
If disability later becomes part of the dispute, the court may ask exactly the same question David’s advice addresses: What reasonable alternatives were considered before possession proceedings were started?
And when it avoids months of further arrears, expensive litigation, counterclaims and the uncertainty of court proceedings, it may prove to be the lowest-risk commercial decision.
For landlords already considering how to exit the private rented sector, that is another reason why agreeing a sale before trying to obtain vacant possession can sometimes make far more financial sense than pursuing the traditional route.
As disability discrimination arguments become more common following the abolition of Section 21, that calculation may begin to change.
The cost of getting it wrong may no longer be measured simply in months of lost rent, but in counterclaims, damages, legal costs and the possibility that possession is refused altogether.
The Importance of Impartial Brokers
The abolition of Section 21 has undoubtedly changed the landscape, and for some landlords, eviction will still be the correct route – but for many others, it may simply be the most expensive, stressful and time-consuming route.
David Coughlin, says: “The Renters’ Rights Act has changed the process, but it hasn’t stopped us selling properties. Most successful sales come down to finding practical solutions that work for the buyer, seller and tenant. Every tenanted property we have sold since May 1st has either been sold with the tenant remaining in situ, or the tenant has left after voluntarily agreeing a Deed of Surrender.”
If you’re holding onto a property because you think tenants, licensing issues, compliance concerns or below-market rents make it impossible to sell, don’t make the mistake of assuming eviction is your only option.
Every week we help landlords solve problems that other agents won’t even touch, finding practical solutions that work for sellers, buyers and tenants alike.
Our success come in part from being the hardest working team there is and partly because the tenants trust us as an impartial broker. They understood that our role is not to pursue our own agenda, but simply to find a practical solution that works for everyone involved.
Before you spend months navigating Section 8, court delays and ongoing compliance risks, speak to Landlord Sales Agency and discover what your options really are. You may be far closer to taking back control than you think.
Contact us today using the form below for a free, no-obligation chat to find out what we can do for you.
