There was no general obligation of disclosure where the role of the Equality Act assessor was to assist the judge in the evaluation and assessment of the evidence.
In Laidley v Metropolitan Housing Trust Ltd [2024] EWHC 2611 (Ch), Mrs Justice Bacon considered appeals from two orders made in a possession claim brought by Metropolitan against the appellant, namely an order made by the court refusing to provide disclosure of the advice given to the court by the appointed Equality Act assessor and the order for possession that was ultimately made. The appellant argued, first, that the trial judge was wrong to refuse to provide disclosure of the advice given to the court by the appointed assessor and, second, that the trial judge’s use of the assessor had been incorrect.
Metropolitan let 57 Yeats Close, London NW10, to the appellant under an assured tenancy. As a result of allegations relating to his behaviour, Metropolitan brought the possession proceedings on discretionary grounds. Although the appellant did not accept that he was mentally unwell or lacked capacity, he was represented by the Official Solicitor. Metropolitan accepted that the appellant had a disability under the Equality Act 2010. Accordingly, Metropolitan had a duty under section 35 not to discriminate against the appellant, and it also had to satisfy the public sector equality duty (PSED) under section 149.
In accordance with section 114(7) of the Act, an assessor was appointed under section 63 of the County Courts Act 1984. Under CPR 35.15, such an assessor will assist the court in dealing with a matter in which the assessor has skill and expertise and will take such part in the proceedings as the court may direct.
On the first day of the trial, counsel for the appellant made an application for the court to define the role of the assessor and for the assessor’s advice to be given in open court. In refusing this application, the trial judge was correct. Where an assessor performs an evidential function in proceedings, disclosure of their advice and evidence will be the normal rule. However, where the role of the assessor is simply to assist the judge in understanding or evaluating the evidence provided by the parties, no duty of disclosure arises under CPR 35.15 and the advice will not normally be disclosed unless fairness requires it in the particular circumstances.
The appellant also argued that the court should not have sought the assessor’s advice on proportionality and legitimate aim, but should have sought it on the question of whether the appellant was disabled and whether Metropolitan had breached its PSED. This was rejected.
There was no suggestion that the assessor in the case was unsuitable. Proportionality is a mixed question of law and fact, and the weighing and evaluation was a matter with which the assessor could assist. In considering the PSED, the judge considered matters relating to proportionality and had said that the assessor had assisted with that issue. However, even if she did not do so, the judge has a wide discretion as to the use to which an equality assessor is put.
Nothing within the judge’s consideration of the PSED had been identified as being procedurally unfair or contrary to the requirements of the Equality Act or the CPR. The appeals were dismissed.
Elizabeth Haggerty is a barrister
