Sarah McKeown considers the decision of the Court of Appeal in Powell v Dacroum Borough Council  EWCA Civ 23. The Court of Appeal dismissed an appeal against a refusal to suspend a warrant for possession as there had been no breach of the public sector equality duty, but even if there had been it was open to the landlord to remedy it at a later stage
Public Sector Equality Act duty (PSED)
The PSED under section 149, Equality Act 2010 requires a public authority, when exercising its functions, to have due regard to various matters including the need to eliminate discrimination and to advance equality of opportunity. In complying with the duty, a public authority may treat some persons more favourably than others. In possession proceedings, this requires a public authority to take steps to have such regard to a tenant or other occupiers’ disability as appropriate in the circumstances. If there is a breach of the PSED, the court should consider whether the possession claim should be dismissed. In Barnsley MBC v Norton  EWCA Civ 834, the Court of Appeal did not dismiss the claim on that basis and Carnwath LJ said that, applying a “practical approach”, the judge in that case had been entitled to find that consideration of the relevant person’s disability would not have made a different to the decision to seek possession, even if the PSED had been complied with. In Paragon Asra Housing Ltd v Neville  EWCA Civ 1712, it was held where a court has undertaken a proportionality inquiry when making an order for possession, absent a relevant change of circumstance, the tenant cannot require the court to reconsider proportionality at enforcement stage.
Mr. Powell was the secure tenant of local authority, who issued possession proceedings against him based on rent arrears and allegations of drug use and drug dealing at the property. The authority’s ASB policy required that disability was taken into account when deciding whether to proceed with legal action. Mr. Powell defended the proceedings on various grounds, including “reasonableness” and breach of his Art. 8 (European Convention on Human Rights) and Art. 7 (Charter of Fundamental Freedoms for the European Union) rights. The Defence stated that Mr. Powell suffered with “both mental and physical disabilities”, being low moods, depression, drug misuse, Hepatitis C. There was no mention of the PSED.
At trial, the court (with the agreement of Mr. Powell) made a suspended possession order, which required him to comply with the terms of his tenancy agreement. There were further allegations concerning drug use/supply at the premises and the authority obtained a Closure Order in the Magistrates’ Court.
Prior to seeking a warrant of possession, the authority sought, unsuccessfully, to contact Mr. Powell and to obtain information from his GP. It contacted the local Community Mental Health Team and a drugs and alcohol support organisation, but was told that Mr. Powell was not known to them. A warrant was obtained and Mr. Powell applied to suspend. Among other things, he asserted that he suffered from a “number of very severe health problems including anxiety, depression”. Again, there was no mention of the PSED.
Prior to the hearing Mr. Powell’s application, he was seen by a Consultant Psychiatrist and prescribed anti-psychotic medication. The doctor produced a report stating that he suffered from psychotic illness and a depressive episode. The authority then carried out a proportionality assessment which expressly addressed the PSED.
First instance decision
The Deputy District Judge found, among other things, that there had been no breach of the PSED, but even if there had been, it could be remedied by the PSED being given proper consideration at a later stage: Norton.
Appeal to Circuit Judge
The Circuit Judge dismissed the appeal, finding there had been no breach of the PSED at the time the warrant was requested: the authority had made sufficient inquiries and what it knew of the Defendant at that time did not constitute a disability. Further, even if there had been a breach, the authority had complied with the duty at a later stage (Norton) and that the proportionality assessment had complied with the PSED obligations. The Circuit Judge also found that there been no failure to comply with the ASB policy.
Mr. Powell appealed again, arguing that the findings that there had been no breach of the PSED/ASB policy were wrong, as were the findings that if there had been a breach, they were remedied by the proportionality assessment. Mr. Powell relied on the evidence given by the Anti-Social Behaviour Officer to seek to demonstrate that the authority had not given the PSED proper consideration. The local authority submitted that the Judge at first instance had been entitled to dismiss the application as a full consideration of the PSED by the authority would not have affected its decision.
The Court of Appeal dismissed the appeal. It was said that just because the ASB Officer had said in evidence that she did not know what the “public sector equality duty” was, did not mean that she did not know of the existence and content of the s.149 duty, and she may simply have been unaware of the “short-hand” terminology. Further, the inquiries carried out by the local authority before obtaining a warrant for possession demonstrated no change of circumstance from the time the possession order was made, and there had been no failure to comply with the PSED at that time. When new medical information emerged, the authority carried out a proportionality assessment, which expressly addressed the PSED. It is open to a social housing landlord to remedy any defect in compliance with the PSED at a later stage in the proceedings (Norton), and so, even if there had been a breach when the warrant was requested, it was later remedied.
The Court of Appeal did not go on to decide whether it would be open to the court, having established a breach of the PSED, to find it would make no difference to a landlord’s assessment of the case.
This underlines the importance of officers being pro-active in making inquiries once on notice of matters which could constitute a disability and/or a material change of circumstance and that it is kept under review, even after a possession order has been made, particularly where fresh medical evidence emerges after the making of the order.