1. The Disability Discrimination Act 2005 is now partially in force: Disability Discrimination Act 2005 (Commencement No 1) Order 2005, SI 2005/1676.

2. See Doyle, B Disability, Discrimination and Equal Opportunities: A Comparative Study of the Employment Rights of Disabled People (London: Mansell, 1995)Google Scholar.

3. Gooding, C Blackstone’s Guide to the Disability Discrimination Act 1995 (London: Blackstone Press, 1995) p 2 Google Scholar.

4. [2004] EWCA Civ 834, [2005] L&TR 13.

5. See, generally, Foucault, M Governmentality’ in Burchell, G, Gordon, C and Miller, P (eds) The Foucault Effect: Studies in Governmentality (Hemel Hempstead: Harvester Wheatsheaf, 1991) pp 87–104 Google Scholar.

6. Rose, N Governing “advanced” liberal democracies’ in Barry, A, Osborne, T and Rose, N (eds) Foucault and Political Reason: Liberalism, Neo-Liberalism and Rationalities of Government (London: UCL Press, 1996) pp 37–64 Google Scholar; .

7. See Giddens, A The Consequences of Modernity (Stanford: Stanford University Press, 1990)Google Scholar; ; ; . For the specific relationship between risk and crime control, see ; .

8. Social Exclusion Unit Mental Health and Social Exclusion: The SEU Report (London: Office of the Deputy Prime Minister, 2004)Google Scholar.

9. Ibid, p 85.

10. Murie, A The social rented sector, housing and the welfare state in the Uk’ (1997) 12 Housing Studies 437 CrossRefGoogle Scholar. We will see, however, that this role for social housing is increasingly threatened by the exclusionary practices associated with the control of anti-social behaviour. As Cowan and Marsh point out ‘at no time since the advent of social housing has more effort been put into dividing the anti-social from those who conform to the norm’. As a result, ‘the notion of the state as the citizens’ provider of last resort no longer holds’: Cowan and Marsh, above n 6, at 40–41.

11. See Griffiths, R Community Care: Agenda for Action (London: HMSO, 1988)Google Scholar and National Health Service and Community Care Act 1990.

12. Barr, W and Glover-Thomas, N The Role of Charities in Housing the Mentally Vulnerable (Liverpool: Charity Law Unit, Liverpool University, 2005)Google Scholar.

13. Office, Home Respect and Responsibility: Taking a Stand Against Anti-Social Behaviour (London: Home Office, 2003)Google Scholar.

14. Crime and Disorder Act 1998, s 1.

15. Recent research on the anti-social behaviour case files of social landlords revealed that 18% showed evidence of mental disorder: Hunter, C, Nixon, J and Shayer, S Neighbour Nuisance, Social Landlords and the Law (Coventry: CIH, 2000) p 19 Google Scholar.

16. In Romano, Ms Romano was diagnosed with a recurrent depressive disorder, while Ms Samari was classified as having a personality disorder. The defendant in Croydon London Borough Council v Moody (1999) 31 HLR 738, another set of possession proceedings discussed below, was said to suffer from a complex personality disorder exacerbated by developing dementia. Research suggests that the usual complaint arising from mental disorder is excessive noise: Barr and Glover-Thomas, above n 12, p 55.

17. MIND Mental Health and Social Exclusion: The MIND Response (2003) p 35, available at http://www.mind.org.uk.

18. M Bright ‘Charity pleads for tolerance as autistic youngsters face ASBOs’ The Observer 22 May 2005.

19. Department of Transport, Local Government and the Regions Tackling Anti-Social Tenants (London: DTLR, 2002)Google Scholar. There has been a move away, however, from government policy defining anti-social behaviour as a housing problem: .

20. Created by the Anti-social Behaviour Act 2003, s 12.

21. Social landlords for this purpose are LHAs, Registered Social Landlords and Housing Action Trusts.

22. Cowan, D Housing Law and Policy (Basingstoke: Macmillan, 1999) p 492 CrossRefGoogle Scholar.

23. Housing Act 1996, ss 144 and 148.

24. Ibid, Pt 5, Ch 3.

25. Ibid, ss 125A–125B.

26. Housing Act 1985, s 82A; Housing Act 1988, s 6A.

27. Housing Act 1996, s 160A(7). Allocations by other social landlords are not regulated by statute.

28. Office of the Deputy Prime Minister/Department of Health Homelessness Code of Guidance (London: ODPM, 2002)Google Scholar para 7.14.

29. MIND, above n 17.

30. The SEU’s report concentrates entirely upon the risk of eviction for non-payment of rent, experienced by one in four mentally disordered tenants. This is understandable given that rent arrears make up 90% of possession cases, while anti-social behaviour accounts for just 3%: Warnes, A et al Homelessness Factfile (London: Crisis, 2003)Google Scholar.

31. [2004] EWCA Civ 834, [2005] L&TR 13 at [117].

32. Cowan, D, Gilroy, R and Pantazis, C Risking housing need’ (1999) 26(4) JLS 403 CrossRefGoogle Scholar.

33. Housing Act 1996, ss 167(2)(d) and 189(1)(c). The Homelessness Act 2002 has amended the reasonable preference categories contained in s 167(2) of the Housing Act 1996 to include ‘(d) people who need to move on medical or welfare grounds (including grounds relating to a disability)’. Note the criticism that ‘care in the community’ policies were developed without clear enough consideration of their implications for housing policy: Cowan, D ‘Accommodating community care’ (1995) 22(2) JLS 212 CrossRefGoogle Scholar.

34. See Murie, A Linking housing changes to crime’ (1997) 31(5) Social Policy & Administration 22 CrossRefGoogle Scholar.

35. Rose, N Government and control’ (2000) 40 Brit J of Criminology 321 CrossRefGoogle Scholar.

36. Papps, P Anti-social behaviour strategies: individualistic or holistic?’ (1998) 13(5) Housing Studies 639 CrossRefGoogle Scholar; ; ; P Card ‘Managing anti-social behaviour – inclusion or exclusion?’; .

37. Butler, S Access Denied (London: Shelter, 1998) p 12 Google Scholar.

38. Dean, M Governmentality: Power and Rule in Modern Society (London: Sage, 1999) pp 149–175 Google Scholar.

39. Ibid, p 165.

40. Flint, J The responsible tenant: housing governance and the politics of behaviour’ (2004) 19(6) Housing Studies 893 CrossRefGoogle Scholar; .

41. See Cowan and Marsh, above n 6. One might note in particular the promotion of ‘choice-based lettings’ by the current government; see Department of the Environment, Transport and the Regions Quality and Choice: A Decent Home for All. The Housing Green Paper (London: DETR, 2000)Google Scholar para 9.5.

42. Flint, J Housing and ethopolitics: constructing identities of active consumption and responsible community’ (2003) 32(3) Economy and Society 611 CrossRefGoogle Scholar at 615.

43. An influential proponent of conditionality in welfare to reinvigorate a sense of moral responsibility is Frank Field MP: Field, F Neighbours from Hell: The Politics of Behaviour (London: Politico’s, 2003)Google Scholar ch 9. For recent support for conditionality, see . For other examples of conditionality in welfare, see .

44. Walker, R The changing management of social housing: the impact of externalisation and managerialisation’ (2000) 15(2) Housing Studies 281 CrossRefGoogle Scholar.

45. Cowan et al, above n 32.

46. The Homelessness Act 2002, for example, now enables LHAs to deem an individual ineligible for allocation of housing, notwithstanding his need, if satisfied that (a) he, or a member of his household, has been guilty of unacceptable behaviour serious enough to make him unsuitable to be a tenant of the authority; and (b) in the circumstances at the time his application is considered, he is unsuitable to be a tenant of the authority by reason of that behaviour (Housing Act 1996, s 160A).

47. Although not extending to consideration of the outcome of a future application for rehousing: Bristol CC v Mousah (1998) 30 HLR 32; Shrewsbury and Atcham Borough Council v Evans (1997) 30 HLR 123.

48. Woking Borough Council v Bistram (1993) 27 HLR 1.

49. Housing Act 1985, s 85A; Housing Act 1988, s 9A.

50. Levitas, R The Inclusive Society? Social Exclusion and New Labour (Basingstoke: Macmillan, 2004) pp 14–21 Google Scholar. The notion of the ‘moral underclass’ is an analysis shared by commentators on both the left and right; see ; .

51. Home Office, above n 13, p 17.

52. Haworth, A and Manzi, T Managing the underclass: interpreting the moral discourse of housing management’ (1999) 36(1) Urban Studies 153 CrossRefGoogle Scholar.

53. Home Office, above n 13, p 7.

54. Deacon, A Perspectives on Welfare (Buckingham: Open University Press, 2002)Google Scholar.

55. Murray, above n 50, p 86.

56. Brown, A Anti-social behaviour, crime control and social control’ (2004) 43(2) Howard Journal 203 CrossRefGoogle Scholar at 207.

57. Parsons, T The Social System (London: Tavistock, 1952) pp 436–437 Google Scholar; .

58. Veatch, Rm The medical model: its nature and problems’ in Edwards, Rb (ed) Ethics of Psychiatry: Insanity, Rational Autonomy and Mental Health Care (Amherst: Prometheus Books, 1997) p 114 Google Scholar.

59. Rabinow, P The Foucault Reader (London: Penguin, 1991)Google Scholar.

60. See, generally, Brayne, H and Carr, H Law for Social Workers (Oxford: Oxford University Press, 2005) pp 515–566 Google Scholar.

61. Ibid, pp 551–552.

62. Warnes et al, above n 30. Indeed, as Cowan et al argue, maintaining the mentally disordered within the social rented sector following deinstitutionalisation was itself a form of risk management. They were identified as having priority need for social housing, because without settled accommodation they were thought to pose a risk to themselves and others: above n 32, at 410.

63. Allen, C Desperately seeking fusion: on “joined-up thinking”, “holistic practice” and the new economy of welfare professional power’ (2003) 54(2) Brit J of Sociology 287 CrossRefGoogle Scholar.

64. Allen, C and Sprigings, N Housing policy, housing management and tenant power in “the risk society”– some critical observations on the welfare politics of “radical doubt”’ (2001) 21(3) Critical Social Policy 384 CrossRefGoogle Scholar.

65. See Social Exclusion Unit Policy Action Team 8: Anti-Social Behaviour (London: ODPM, 1998) p 51–52 Google Scholar.

66. Hunter et al, above n 15, ch 13.

67. Campbell, S A Review of Anti-Social Behaviour Orders (London: Home Office, 2002) p 37 Google Scholar.

68. See Carr, H “Someone to watch over me”: making supporting housing work’ (2005) 14(3) Social and Legal Studies 387 CrossRefGoogle Scholar.

69. Dean, R and Craig, T ‘Pressure points.’ Why People with Mental Health Problems become Homeless (London: Crisis, 1999) pp 3–4 Google Scholar.

70. On the problems of inter-agency partnership generally, see Crawford, A The Local Governance of Crime: Appeals to Community and Partnership (Oxford: Clarendon Press, 1997)Google Scholar.

71. Of course, housing providers are not always the problem. Evidence suggests that social services often fail to respond to the requests for assistance from landlords, with possession proceedings sometimes initiated in an effort to attract the attention of uncooperative agencies: Hunter et al, above n 15, p 32.

72. Papps, above n 36, at 645. Emphasis added.

73. For an early criticism of the lack of clarity inherent in the concept of anti-social behaviour, and an attempt to unpack the term, see Scott, S and Parkey, H Myths and realities: anti-social behaviour in Scotland’ (1998) 13(3) Housing Studies 325 CrossRefGoogle Scholar.

74. Veatch, above n 58, pp 114–116.

75. Feinberg, J ‘What’s so special about mental illness?’ in J Feinberg Doing and Deserving (Princeton: Princeton University Press, 1970) p 272 Google Scholar. It tends to form the basis of jurisprudential inquiry in relation to the criminal defence of insanity: .

76. See Kenny, A Freewill and Responsibility (London: Routledge, 1971) pp 22–45 Google Scholar.

77. Feinberg, above n 75, p 273.

78. An approach followed for the most part within the criminal law through the defence of insanity as set out by M’Naughton’s Case (1843) 4 StTr (NS) 847.

79. Feinberg, above n 75, p 273.

80. Bjorklund, P “There but for the grace of God”: moral responsibility and mental illness’ (2004) 5(3) Nursing Philosophy 188 CrossRefGoogle ScholarPubMed.

81. Mitchell, E Self Made Madness: Rethinking Mental Illness and Criminal Responsibility (Aldershot: Ashgate, 2003)Google Scholar.

82. Robinson, D Wild Beasts and Idle Humours (Cambridge, MA: Harvard University Press, 1996) p 237 Google Scholar.

83. Williams, G Textbook of Criminal Law (London: Stevens & Sons, 1983) p 692 Google Scholar.

84. Indeed, both Ms Samari in Manchester City Council v Romano [2004] EWCA Civ 834, [2005] L&TR 13 and Mr Moody in Croydon London Borough Council v Moody (1999) 31 HLR 738 were found to have suffered from personality disorders.

85. Ch V, F60.2.

86. Szasz, T The Myth of Mental Illness (London: Paladin, 1972)Google Scholar.

87. Sharkey, J Personality disorders are arbitrary medicalisation of human variation’ (1999) BMJ Google ScholarPubMed 318(7186), 20 March, p 806.

88. Moran, P Maudsley Discussion Paper No 7: Should Psychiatrists Treat Personality Disorders? (London: King’s College, 2000)Google Scholar.

89. Crawford, Mj et al ‘Most psychiatrists oppose plans for new mental health act’ (2001) BMJ Google ScholarPubMed 322(7290), 7 April, p 866.

90. Bjorklund, above n 80.

91. SA Spence ‘Personality disorder: agency and responsibility’ (2001) 179 Brit J of Psychiatry 558.

92. (1999) 31 HLR 738.

93. Ibid, at 742.

94. DDA, s 22(1).

95. Ibid, s 22(3).

96. Ibid, s 22(4).

97. Ibid, s 1(1) and Sch 1. A mental impairment will do so if it affects memory or the ability to concentrate, learn or understand; or perception of the risk of physical danger. See, generally, James, G An unquiet mind in the workplace: mental illness and the Disability Discrimination Act 1995’ (2004) 24 LS 516 Google Scholar.

98. [2003] EWHC 574, [2003] L&TR 26.

99. [2004] EWCA Civ 834, [2005] L&TR 13 at [19].

100. DDA, s 24.

101. [1999] IRLR 318.

102. DDA, s 24(2) and 24(3)(a).

103. [2004] EWCA Civ 834, [2005] L&TR 13.

104. Shamoon v Chief Constable of the RUC [2003] UKHL 1, [2003] IRLR 285 at [35].

105. Housing Act 1996, ss 152A–152E.

106. Crime and Disorder Act 1998, s 1.

107. [2004] EWCA Civ 834, [2005] L&TR 13 at [116].

108. Chadwick, A Knowledge, power and the Disability Discrimination Bill’ (1996) 11 Disability and Society 25 CrossRefGoogle Scholar.

109. Doyle, B Enabling legislation or dissembling law?’ (1997) 60 MLR 64 CrossRefGoogle Scholar.

110. Ibid, at 78.

111. A Lawson ‘Selling, letting and managing premises: new rights for disabled people’ [2000] Conv 128 at 152.

112. [2004] EWCA Civ 834, [2005] L&TR 13 at [67].

113. Ibid, para [121].

114. Hansard HC Deb, Standing Committee E, cols 452–454, 7 February 1995, William Hague MP.

115. See, however, some of the problems identified by the Court of Appeal: [2004] EWCA Civ 834, [2005] L&TR 13 at [115]–[123].

116. Barr and Glover-Thomas, above n 12, p 67.

117. There is at least one county court case in which such an argument has succeeded: Liverpool City Council v Slavin, 29 April 2005, Legal Action (July 2005).

118. Barr and Glover-Thomas, above n 12, pp 66–69.

119. Ibid, p 67.

120. See, in the context of the Sex Discrimination Act 1976, R v Birmingham City Council, ex p EOC [1989] AC 1155; James v Eastleigh Borough Council [1990] 2 AC 751.

121. [2004] EWCA Civ 834, [2005] L&TR 13 at [53].

122. Ibid, para [69].

123. Newcastle City Council v Morrison [2000] L&TR 333; Sheffield City Council v Jepson (1993) 25 HLR 299. Although see Canterbury City Council v Lowe (2001) 33 HLR 583, which suggests that the potential success of an injunction in controlling conduct might justify a suspended possession order.

124. [2004] EWCA Civ 834, [2005] L&TR 13 at [60].

125. Eg Health and Safety at Work Act 1974.

126. [2003] L&TR 26 at [21].

127. See Home Office, above n 13, p 3.

128. Hatton v UK (2003) 15 BHRC 259; López Ostra v Spain (1995) 20 EHRR 277; Guerra v Italy (1998) 26 EHRR 277. These cases involved environmental pollution rather than anti-social behaviour, but for implied support for their application in this context, see Bakalis, C and Bright, S Anti-social behaviour: local authority responsibility and the voice of the victim’ (2003) 62 CLJ 305 Google Scholar at 326.

129. Botta v Italy (1998) 26 EHRR 241.

130. López Ostra v Spain (1995) 20 EHRR 277 at para 51. See also Moreno Gómez v Spain Application No 4143/02 (unreported) 16 November 2004.

131. Ashworth v UK [2004] 3 EHRLR 330. Note that currently local authorities appear to be protected from liability for the anti-social behaviour of their tenants: Hussain v Lancaster CC [2000] QB 1; Mowan v Wandsworth Borough Council (2001) 33 HLR 56. Cf I Loveland ‘Fixing landlords with liability for the anti-social behaviour of their tenants: stretching the orthodox position’ [2005] JPL 273 and [2005] JPL 405. However, these decisions have yet to be properly scrutinised under the Human Rights Act 1998.

132. To this end the courts have a supervisory role over legislation under the Human Rights Act 1998.

133. Though ‘trivial’ harm to health must be disregarded: [2004] EWCA Civ 834, [2005] L&TR 13 at [75].

134. Ibid, para [116].

135. Interestingly, application of the World Health Organisation definition of health has been employed as an interpretative technique before. When the British Government attempted to attack the legality of the EC Working Time Directive on grounds that it did not fit within the head of ‘health or safety’ legislation, the European Court of Justice used it to expand the power of the EC to extend its control over areas of social policy: United Kingdom v Council[1996] ECR I-5755 at para 15; see Fitzpatrick, B ‘Straining the definition of health and safety?’ (1997) 26 ILJ 115 CrossRefGoogle Scholar.

136. Arden, A Who cares in, and who cares about, the community?’ (2004) 7(5) JHL 65 Google Scholar at 67.

137. Ms Romano herself had failed to cooperate with her own treatment programme: ‘[h]er motivation to help herself was poor, and she did not take her medication regularly’; [2004] EWCA Civ 834, [2005] L&TR 13 at [77].

138. Goodwin v The Patent Office [1999] ICR 302 at 309.

139. Morgan v Staffordshire University [2002] ICR 475 at 486.

140. Disability Discrimination Act 2005, s 18(2).

141. Fredman, S Discrimination Law (Oxford: Oxford University Press, 2002) pp 17–19 Google Scholar.

142. Doyle, B Disability, Discrimination and Equal Opportunities (London: Mansell, 1995) p 1 Google Scholar.

143. Indeed, commentators are increasingly disillusioned by the medical model itself for impinging upon the dignity of the mentally disordered in this way. As Veatch points out: ‘They recognise that to place an individual in the medical model is to remove blame, but to remove blame is to remove responsibility, and to remove responsibility is to challenge the dignity of the individual’; Veatch, above n 58, p 115.

144. Young, Im Justice and the Politics of Difference (Princeton: Princeton University Press, 1990)Google Scholar ch 4.

145. Fredman, above n 141, p 66.

146. Hansard HC Deb, col 105, 7 February 1995, William Hague MP.

147. Regulation 4(1).

148. Regulations 2 and 3.

149. Goodin, Re Social welfare as a collective social responsibility’ in Schmidtz, D and Goodin, Re (eds) Social Welfare and Individual Responsibility (Cambridge: Cambridge University Press, 1998) pp 97–195 Google Scholar.

150. See Fredman, above n 141, pp 20–22.

151. Collins, H Discrimination, equality and social inclusion’ (2003) 66(1) MLR 16 CrossRefGoogle Scholar.

152. Ibid.

153. Haworth and Manzi, above 52, at 160; Hunter, above n 36, p 234.

154. Mellacher v Austria (1990) 12 EHRR 391; R (on the application of McLellan) v Bracknell Forest Borough Council [2001] EWCA Civ 1510, [2002] QB 1129.

155. Without modification, such an application of the DDA may well give rise to a challenge under Protocol 1, Article 1 to the Convention, as a landlord will effectively be deprived of his property without compensation: Mellacher v Austria (1990) 12 EHRR 391; Scollo v Italy (1996) 22 EHRR 514.

156. Note that the DDA makes provision for addition to the ‘fixed list’ of justifications through secondary legislation: DDA, s 24(5). An economic justification can be found in the justifications for discrimination by public authorities incorporated in the DDA by the Disability Discrimination Act 2005: s 21D(4).