Landlord and tenant – Public sector equality duty – Disability discrimination – Respondent housing association letting flat to appellant – District judge making possession order on basis of anti-social behaviour – High Court upholding decision – Appellant appealing – Whether courts erring in rejecting defence based on public sector equality duty in section 149 of Equality Act 2010 – Appeal dismissed
The respondent was a housing association which let a property at 34 Wilmington Close, Watford to the appellant under an assured tenancy. The appellant appealed against a possession order made by a district judge on the basis of his anti-social behaviour. The appellant had a history of drug and alcohol misuse.
It was common ground that there had been a breach of the respondent’s public sector equality duty (PSED) under section 149 of the Equality Act 2010 before it applied for the possession order. The district judge, rejecting the appellant’s claim of indirect discrimination because of his disability, concluded that, although she did not accept all the respondent’s allegations, the grounds for a possession order were made out. The judge was not persuaded that there was any causal link between the appellant’s physical disability and the anti-social behaviour.
On appeal, the High Court said that the judge had erred in two respects: (i) by relying on the decision in Hertfordshire County Council v Davis [2017] EWHC 1488; [2017] PLSCS 142 which, unknown to her, had been overturned by the Court of Appeal; and (ii) by relying on her findings as to proportionality in relation to the indirect discrimination defence in support of her decision that the possession order should be granted despite the PSED breach. Compliance with the PSED involved more than a proportionality assessment, namely a rigorous consideration of the impact of the decision to seek possession against the objectives encapsulated in the PSED. However, those errors were immaterial because the respondent could and would legitimately make the same decision if now required to do a proper assessment and the district judge would have so concluded if she had carried out a structured enquiry about the consequences of the breach of the section 149 duty: [2019] EWHC 24 (QB); [2019] PLSCS 11. The appellant appealed.
Held: The appeal was dismissed.
(1) There was no general rule that, if there was a breach of the PSED, any decision taken after such breach necessarily had to be quashed or set aside or that there was only a narrow category of cases in which that consequence would not follow. It might well be right that major governmental decisions affecting numerous people might be liable to be quashed if the government had not complied with the PSED: see R (on the application of Hurley) v Secretary of State for Business [2012] HRLR 374 and Bracking v Secretary of State for Work and Pensions [2013] EWCA 1345. However, those decisions could not be applied indiscriminately to cases in which a decision was made affecting an individual tenant of a social or local authority landlord: Powell v Dacorum Borough Council [2019] EWCA Civ 23: [2019] PLSCS 16 followed.
(2) In the context of a typical possession action the court, while having regard to the importance of the PSED, would also have available to it the facts of the particular dispute and be able to assess the consequence of any breach of the duty more easily than in the context of a wide-ranging ministerial decision. Rather than acting as some sort of mentor to decision-makers the court should, in deciding the consequence of a breach of PSED, look closely at the facts of the particular case and, if on the facts it was highly likely that the decision would not have been substantially different if the breach of duty had not occurred, there would (subject to any other relevant considerations) be no need to quash the decision. If, however, it was not highly likely, a quashing order might be made: R (on the application of West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441; [2016] PLSCS 137 followed.
(3) It seemed that the remedy of quashing or setting aside decisions had only been refused when there had been a subsequent compliance or a convincing undertaking that the duty would be complied with in the future in a manner that compensated for earlier non-compliance. However, as a matter of law, it was not only in those categories that there was a discretion to refuse relief. That would be contrary to the general rule of public law that the nature of the relief granted was a matter of discretion. The fact that the point was taken by way of defence could make no difference to that general position. Therefore, it was open to the judge to make the possession order if, on the facts, there was only one answer to the claim for possession. This was an appropriate case so to conclude on the facts. There was a finding that there was no viable option for the landlord other than to seek possession. It was important for the respondent to bear in mind the position of the other tenants in the block whose lives were blighted by the appellant’s breach of the terms of his tenancy. It was not for the Court of Appeal to substitute its view for that of the lower courts, unless there was some legal error. In the absence of any such error, the decision of the courts below had to be respected: West Berkshire, Powell and London and Quadrant Housing Trust v Patrick [2019] EWHC 1263 (QB) considered.
(4) Section 31(2A) of the Senior Courts Act 1981 provided that the High Court had to refuse to grant relief on an application for judicial review if it appeared to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. 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. The allowance of the defence to private law claims had to carry with it the public law consequences of relying on such a defence: Patrick applied. Barnsley Metropolitan Borough Council v Norton [2011] EWCA Civ 834; [2011] PLSCS 192 followed.
Toby Vanhegan, Nick Bano and Hannah Gardiner (instructed by Arkrights Solicitors) appeared for the appellant; Nicholas Grundy QC and Millie Polimac (instructed by Devonshires Solicitors LLP) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Forward v Aldwyck Housing Group Ltd
