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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.
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:
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
Appeal to the High Court was made on the breach of section 149 and PSED
Cheema-Grubb J held that:
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:
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.
DISCLAIMER: This bulletin is no more than a summary of the topic or topics, chosen selectively for the purposes of discussion only. It is not legal advice and should not be treated as such. It should not be relied or acted upon in any respect. Recipients should always seek legal advice if proposing to take action following this commentary.