Social landlords subject to the public sector equality act duty can take some comfort in the fact that the Court of Appeal has dismissed a second appeal against a possession order notwithstanding a breach of the PSED.
Social landlords should, however, fully comply with the PSED when they take possession proceedings concerning those with disabilities and other relevant protected characteristics in an attempt to avoid this type of challenge. This is of utmost importance given the Court made it clear that the appropriate relief in these sorts of cases will turn on the facts.
On 23 January 2019, Clare Cullen considered the decision of the High Court in  EWHC 24 (QB) here.
Here, Sarah Salmon and Clare Cullen look at the second appeal in the case: Forward v Aldwyck Housing Group Limited  EWCA Civ 1334.
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. The court should approach the issue in the same way it would when considering relief in the context of judicial review: Barnsley MBC v Norton  EWCA Civ 834;  HLR 46.
Mr Forward was the assured tenant of the respondent housing association. The housing association issued possession proceedings under Grounds 12 and 14, Schedule 2, Housing Act 1988. The allegations primarily concerned drug use and dealing at the property. It was admitted that Mr F had been a class A drug user but, in respect of others using the property, he alleged he was vulnerable to exploitation. Mr F alleged that he had a disability under the Equality Act 2010 concerning both physical and mental health issues and that his mental health meant he found it difficult to refuse admission to drug users and control the behaviour of his visitors. He raised a number of defences including a failure by the housing association to comply with the PSED.
A PSED assessment was prepared by the time of trial. It was common ground in closing submissions that there had been a failure to comply with the duty and in the course of cross examination this was accepted by the relevant officer. The housing association contended that the failure was not material and that possession was the only viable option.
The judge at first instance found that there was very little evidence from Mr F as to what vulnerability was being exploited and how it was being exploited. The judge accepted that Mr F was physically disabled but rejected that he had a disability by reason of a mental impairment. The judge considered it was reasonable to make an outright possession order. The judge wrongly considered that a failure to comply with the PSED could not be a defence to the claim.
The High Court
On appeal to the High Court, it was common ground that, in light of the acknowledged breach of the PSED, the judge should and failed to consider whether to grant relief (i.e. dismiss the possession claim).
Mrs Justice Cheema-Grubb DBE dismissed the appeal. Whilst the first instance judge fell into error in her approach to the PSED, the failure to comply was not a material error in the case and a compliant PSED assessment would inevitably have come to the same conclusion.
The second appeal
Mr F contended that once it was admitted there had been non-compliance with the PSED duty, there was in principle no room for a court to exercise its discretion to grant relief. It was put that there were only two categories of case in which a discretion to refuse relief should be exercised:
- cases in which there had been a subsequent compliance with the duty in that particular case; and,
- cases in which it was clear that future compliance would compensate for the prior non-compliance: see para. 18 of the judgment.
Mr F also raised a second ground of appeal: Cheema-Grubb J had relied on the absence of evidence of mental incapacity as justification for her conclusion that the same decision would have been reached. She was wrong to do so.
The housing association wanted to withdraw their previous concession that there had been a breach of the PSED. This was not permitted by the Court of Appeal.
In further response to the grounds, the housing association submitted that the grant of relief in cases raising issues of public law was always discretionary and should not be limited to the two categories of case proposed by Mr F.
As to the second ground of appeal, the submission was that Cheema-Grubb J’s recording of the absence of mental incapacity did not affect her decision.
There is a discretion to refuse relief in cases where a public law defence is raised and such a discretion is not limited to two categories as suggested by Mr F. To limit the discretion would be contrary to the general rule of public law that the nature of the relief granted is a matter of discretion. The fact that the point is taken by way of defence makes no difference: see judgment at para. 31.
It was open to the judge to make the possession order (and to Cheema-Grubb J to refuse to set aside) if, on the facts, there was only one answer to the claim for possession: see judgment at paras. 32 and 33.
The Court held it was appropriate on the facts to make a possession order in Mr F’s case (at paras.34-36):
- there was a finding there was no viable option for the landlord other than to seek possession;
- although there was a focus on Mr F’s disability, it was of significance that the landlord had to bear in mind the position of the other tenants whose lives were blighted by Mr F’s breach of the terms of his tenancy;
- it is not for the Court of Appeal to substitute its view for that of the lower courts, unless there was some error of legal approach. In the absence of any such error, the decision of the courts below should be respected; and,
- 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 (relying upon section 31(2A) of the Senior Courts Act 1981 and Barnsley MBC v Norton).
In relation to the second ground, it was held that the comments regarding mental incapacity did not impact on Cheema-Grubb J’s decision. In any event, the Court was concerned with whether the judge at first instance reached the right decision. She did.
Those employed by social landlords making Equality Act 2010 decisions need to fully understand and engage with the PSED duty.
Although the Court’s decision in this case can be of some comfort, what it does not say is that a failure to comply with the PSED does not matter. It could still result in could not result in a possession claim being dismissed. Where there has been a failure to comply, it needs to be demonstrated on the facts of any case that consideration of a disability (or other relevant protected characteristic) would not have made any difference to the decision to seek possession.