PSED and Possession Proceedings

January 23, 2019

Clare Cullen considers the decision of the High Court in Forward v Aldwyck Housing Group Limited [2019] EWHC 24 (QB). The High Court dismissed an appeal against a possession order notwithstanding a breach of the public sector equality act duty.

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 the approach the issue in the same way it would when considering relief in the context of judicial review (Barnsley MBC v Norton [2011] EWCA Civ 834; [2011] HLR 46).

Facts

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. Some evidence from the police appeared to support this and suggested that there was cuckooing (dealing of drugs at the residence of someone who is vulnerable). 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 found that Mr F was allowing people to use his property and she considered that the grounds for possession were made out. The judge accepted that Mr F was physically disabled but rejected that he had a disability by reason of a mental impairment. The judge did not consider there was any link between Mr F’s disability and the anti-social behaviour. In any case, she considered that eviction was proportionate and struck the right balance between the need to remove the anti-social behaviour and the disadvantages Mr F would suffer as a disabled person. 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.

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).

The decision

Mrs Justice Cheema-Grubb DBE dismissed the appeal. Mr F had failed to provide sufficient evidence to support his case concerning the impact of his mental health difficulties and the link to the alleged conduct. 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.

Comment

This case demonstrates the importance of adducing medical evidence in cases where disability discrimination and PSED defences are raised by tenants. It also demonstrates the need for social landlords to fully comply with the PSED when they take possession proceedings concerning those with disabilities and other relevant protected characteristics. This means more than simply filling in an assessment form (as had happened in this case).

Housing officers need to fully understand and engage with the duty. Although in this case the failure was not considered to be material, a failure to comply with the PSED could result in a possession claim being dismissed.