Housing Law Bulletin – breach of the public sector equality duty and possession proceedings
STEVEN FORWARD v ALDWYCK HOUSING GROUP LTD  EWCA Civ 1334.
In this bulletin Angela Piears looks at this recent Court of Appeal decision that considers whether, if a social landlord breaches its Public Sector Equality Duty (“PSED”) under section 149 Equality Act 2010 (“EA”), a court will assess if it would have made any difference had the social landlord in fact complied with its duty.
- In this case there was a breach of the landlord’s PSED because it failed to carry out a PSED assessment before issuing a claim for possession.
- The Court decided that if, on the facts of the case, it was very likely that, even if the breach had not occurred, the decision would have been substantially the same, then there was no need to set aside the Possession Order.
This was an appeal from the High Court, where Cheema-Grubb, J, had dismissed an appeal from District Judge Wood who had made a possession order on 12th March 2018.
The Respondent landlord was a social housing association and from 2013 Mr Forward (the Appellant) had been its tenant. He had physical disabilities of back, hip and knee pain. The district judge was not satisfied there was evidence to support his claim of mental disability.
In February 2017 there were reports of anti-social behaviour involving visitors to Mr Forward, including arriving late at night, demanding to be let in and threatening violence. Police attended after one visitor assaulted another and they found class A drugs and drug-dealing paraphernalia. The landlord wrote a warning letter, met with Mr Forward and offered support to help him keep people away. He was warned possession proceedings would follow if the situation did not improve. A security officer was put in place by the local council, a meeting was held with the tenant and his daughter, the housing officer, area housing manager and the Community Safety co-ordinator, and a further warning given. Complaints continued. Police executed a search warrant, found Class A drugs and drug paraphernalia and then obtained a closure order. They considered this was a case of ‘cuckooing’ – where the address of a vulnerable person is used by those involved in drug operations.
The claim for possession was issued around 6 weeks later, in July 2017. Two months later, a PSED assessment was carried out. The landlord accepted at trial the assessment was inadequate because:
- Despite being aware that Mr Forward was physically disabled, no medical advice was obtained;
- The assessment was not carried out with an open mind;
- Alternatives to possession were not considered; and
- Neighbours’ views were preferred to those of the police.
The Public Sector Equality Duty
As a social housing association the Respondent landlord had a duty under section 149 EA to have due regard to the need to eliminate discrimination, advance equality of opportunity for disabled persons and to foster good relations between disabled and non-disabled persons, and that involves having due regard to the need to remove or minimize disadvantages suffered by disabled persons, to take steps to meet their needs and to encourage them to participate in public life. Steps include taking account of the person’s disabilities.
The landlord admitted it had failed to comply with that duty before seeking a possession order on grounds that the tenant had breached his tenancy agreement and caused a nuisance or annoyance to people living nearby. At first instance and in the High Court the judges agreed there had been a breach of PSED.
The Lower Courts
Judge Wood’s decision in Watford County Court
- There was no ‘cuckooing’ and visitors were invited
- There was no mental impairment
- There was no causal link between the physical disability and the anti-social behaviour, and the defence of direct discrimination (section 15 EA) failed as possession was not sought because of his disability
- The defence of indirect discrimination failed (section 19 EA) because seeking possession was a proportionate means of achieving a legitimate aim of reducing anti-social behaviour and there was no alternative way to achieve that aim
- The breach of section 149 did not provide a defence (relying on Hertfordshire v Davis  EWHC 1488), and such a defence would have been rejected in any event for the same reason the judge rejected the indirect discrimination defence, as possession was a proportionate means of achieving a legitimate aim.
Appeal to the High Court was made on the breach of section 149 and PSED
Cheema-Grubb J held that:
- The landlord could not adduce new evidence of later PSED assessments
- The Appellant could not adduce new evidence of mental incapacity
- The District Judge had erred because she relied on the decision of Davis – which was overturned by Court of Appeal a few days before Judge Wood’s decision, and she relied on her findings about proportionality regarding indirect discrimination to support her decision that possession should be granted despite the breach of the PSED, whereas in fact compliance with PSED involved more than a proportionality assessment – there should be a rigorous consideration of the impact of the decision to seek possession against the PSED objectives
- Despite the errors Cheema-Grubb J was satisfied the landlord would make the same decision if now required to carry out a proper assessment, and Judge Wood would have concluded the same if she had carried out a structured enquiry about the consequences of the PSED breach.
Mr Forward was given permission to appeal from the High Court decision by McCombe LJ.
The Court of Appeal Judgment
The Court proceeded on the basis there had been a breach of duty (PSED) and assessed the consequences of that breach. The judges rejected the Appellant’s arguments that as a general rule if there was a breach of PSED any decision taken after the breach must be quashed or set aside, or that there is only a narrow category of cases in which that consequence will not follow.
Longmore LJ in the leading judgment considered that:
- In a typical possession action, the court would have regard to the PSED but also the facts of the case, and would be able to assess the consequences of any breach of duty more easily than in a case involving ministerial decisions
- The court should not act as some sort of mentor or nanny to decision-makers but should look closely at the facts of the case.
- If on the facts, it is highly likely the decision would not have been substantially different if the breach of duty had not occurred, then there would be no need to quash the decision. If it was not highly likely, a quashing order may be made.
- The categories of cases where there was a discretion to refuse relief for non-compliance with PSED was not limited.
- On the facts of this case there was no viable option for the landlord other than to seek possession
- In the absence of an error of legal approach, the lower courts’ decision was to be respected
- Principles applicable to applications for judicial review were to be followed, and if it was highly likely that the outcome would not have been substantially different if the breach had not occurred, relief to the appellant must be refused. It would be very odd if a non-material breach could be disregarded on a public law challenge but was fatal to a private law claim in which public law was relied on as a matter of defence.
The Court rejected the Appellant’s second ground of appeal - that Cheema-Grubb J’s decision was undermined by relying upon the absence of evidence of mental disability. Longmore LJ viewed the judge’s statements as being made in the context of her looking at the issue of ‘cuckooing’ and that anti-social behaviour may be the consequence of criminals exploiting a vulnerable tenant. He did not think the reference affected her ultimate decision and, even if it did, he thought she reached the right decision.
The case holds that there should be no rigid rule that non-compliance with the PSED should always result in an order quashing the relevant decision.
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