Landlord and tenant – Public sector equality duty (PSED) – Assured tenancy – Appellant tenant resisting claim for possession of property by respondent registered social landlord on ground of breach of PSED – Judge granting possession order finding respondent in breach of PSED but remedying failure while giving evidence at trial – Appellant appealing – Whether retrospective compliance with PSED possible – Whether compliance with PSED while giving evidence during trial sufficient – Appeal allowed
The respondent was a registered provider of social housing and the freehold owner of a unit of supported housing accommodation occupied by the appellant, who suffered from a serious mental health disability.
Following acts of anti-social behaviour related to his disability, the respondent carried out a lawful impact assessment in accordance with the public sector equality duty (PSED) set out in section 149 of the Equality Act 2010. It decided to bring possession proceedings on grounds of anti-social behaviour. The appellant did not have capacity to conduct litigation and the proceedings were conducted on his behalf by his father.
The appellant obtained an expert report from a psychiatrist which explained that the appellant lacked capacity and would be unable to take part in the litigation at all. In breach of the PSED, the respondent then failed to reconsider whether to continue with the claim in the light of that report.
At the hearing of the claim for possession, the respondent’s decision maker gave evidence that, if there had been no breach of the PSED, he would have tried alternative solutions. However, he said that it was proportionate to seek the appellant’s eviction. The recorder found that, although there had been a breach of the PSED, the required assessment had in effect been carried out when the decision maker gave evidence at trial. Accordingly, he upheld the respondent’s claim and granted possession of the property. However, he stayed enforcement to enable suitable alternative accommodation to be found. The High court dismissed an appeal against that decision: [2020] EWHC 311 (QB). The appellant appealed.
Held: The appeal was allowed.
(1) It was well established that the PSED was a duty to carry out a proper process, not to procure any particular outcome, and that it had to be exercised in substance, with rigour and with an open mind. It was good practice for a decision maker to keep records demonstrating consideration of the duty, as proper record-keeping encouraged those carrying out the relevant function to undertake their disability equality duties conscientiously. And even though the reasonableness and proportionality of continuing to seek possession might be an appropriate way of characterising the ultimate decision to be made, that was not the same as saying that all that was needed was a proportionality assessment; what was needed was an open-minded conscientious inquiry: Luton Community Housing Ltd v Durdana [2020] EWCA Civ 445; [2020] PLSCS 57 followed.
(2) Expecting a witness “in effect” to carry out an assessment in the witness box, with all the pressures that that brought, was self-evidently about as far removed from that as one could imagine. There was an obvious danger of confirmation bias whenever a decision maker carried out an assessment in relation to a decision that had already been made, rather than in advance; particularly so in the case of litigation, when costs had already been incurred and the incentive to pursue the proceedings to a successful conclusion could be very high. Where, as here, the evidence was ambiguous at best, that made it very difficult to hold that an admitted breach had been duly remedied (even assuming that that was in principle possible); and on the facts of the present case the finding that the respondent’s breach of the PSED was remedied in the witness box could not stand.
(3) In possession proceedings brought by a local authority, a breach of the PSED at an early stage (for example the decision to commence the proceedings) could be remedied by compliance with the PSED at a later stage. However, the fact that the PSED was not complied with at the earlier stage was not irrelevant to the question of later compliance. It was always necessary to find that the public authority had complied in substance, with rigour and with an open mind with the PSED. Where a public authority had commenced proceedings without complying with the PSED, it was important to guard against the risk that its subsequent purported compliance when deciding to continue the proceedings was tainted by the incentive not to depart from a decision already made. That, however, was relevant to the question of fact, whether it had complied with the PSED in the particular circumstances, and was not a bar to it curing the breach as a matter of law: Taylor v Slough Borough Council [2020] EWHC 3520 (Ch); [2021] PLSCS 1 followed.
(4) The possession order could not stand, on the basis that the respondent would undertake a further PSED assessment before applying to enforce the order. If the respondent’s evidence was not sufficient to cure the breach, then the proceedings, although started properly, were continued in breach of the PSED. That did not necessarily require the possession order to be quashed as relief was always discretionary, but in this case the possession order obtained in breach of the PSED could not properly stand as the breach was not so insignificant as not to justify any remedy: Forward v Aldwyck Housing Group Ltd [2019] EWCA Civ 1334; [2019] PLSCS 165 applied.
There was a breach of the PSED which had not been remedied prior to trial and was not remedied at trial. That amounted to a defence. The respondent’s claim having failed at trial, it followed that the action should be dismissed.
(5) (per Green LJ) This was a case which cried out for administrative review. The appellant was legally aided, and the respondent was in receipt of public funds performing a public law service and duty. This appeal amounted to a third level of judicial intervention. The costs incurred were significant, both to the public purse and in terms of court resources. Internal administrative review of decisions which were challenged was increasingly common within public authorities. An independent, objective review by a fresh pair of eyes could bring a dispute to a swift solution avoiding hard-fought litigation. The failure to have such a system in place had led to the squandering of scarce resources far better deployed elsewhere.
Karon Monaghan QC and Nick Bano (instructed by Duncan Lewis Solicitors) appeared for the appellant; Andrew Lane and Liam Varnam (instructed by Metropolitan Housing Trust Ltd) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Metropolitan Housing Trust Ltd v TM
