Landlord and tenant – Public Sector Equality Duty – Possession – Respondent holding tenancy of property owned by appellant social landlord – Appellant seeking order for possession relying on inducement to grant tenancy by false statement – Judge refusing to make possession order – Appellant appealing – Whether judge misdirecting herself as to outcome of PSED assessment properly carried out – Appeal allowed
The respondent held a tenancy of 3 Griggs Gardens, Luton granted by the appellant social landlord company following her application for housing assistance. The respondent’s daughter suffered from cerebral palsy and the respondent suffered from PTSD as a result of the trauma associated with her daughter’s birth.
The appellant sought possession of the property under ground 17 of Schedule 2 to the Housing Act 1988, which permitted the court to grant an order for possession where the landlord had been induced to grant the tenancy by a false statement made knowingly or recklessly by the tenant. The ground was discretionary so that, even if made out, the court then had to decide whether it was reasonable to make the order: see section 7(4) of the 1988 Act. It was common ground that ground 17 had been made out, but the respondent argued that it was not reasonable to make a possession order because of the effect such an order would have on herself and her daughter.
The judge held that, although the respondent had made false statements in her application for housing assistance, the appellant had been in breach of the Public Sector Equality Duty (PSED) set out in section 149 of the Equality Act 2010. Accordingly, the judge dismissed the claim for possession. In those circumstances, it was not strictly necessary to consider whether the claim should also fail because it was not reasonable to make the possession order. But the judge indicated that in her view the fact of the breach of the PSED did make it unreasonable to order possession because it was at least a possibility that on a proper consideration by the appellant of all relevant factors the possession proceedings might not have gone ahead. The appellant appealed. The Equality and Human Rights Commission intervened.
Held: The appeal was allowed.
(1) The duty which section 149 imposed was in many ways aspirational in the sense of providing encouragement to public authorities in the exercise of their functions to achieve the objectives set out in s.149(1). The focus of the PSED embodied in section 149 was on the general advancement of equality aims. It was not concerned to prohibit or regulate conduct which was discriminatory or with the imposition of the duty to make adjustments, all of which were existing features of the law in relation to disabled persons and had been continued in the provisions of Part 2 of the 2010 Act. Nor was the duty, at least in terms, one to do anything specific in addition to or independently of the performance of the functions which the authority was carrying out.
In the present case, the judge was right to conclude that there had been a breach of the PSED. Although it was theoretically possible for the duty to be complied with in ignorance of what it consisted of, such cases were likely to be rare and this was not one of them. The appellant, by its own admission, had not taken into account the likely effect of the disabilities of the respondent and her daughter in relation to their proposed eviction from the premises, although at the time when the decision was made it knew what the disabilities were; knew that they were being relied on as a defence to the proceedings; and had received copies of the medical reports. Although the reasonableness or proportionality of continuing to seek possession might be an appropriate way of characterising the ultimate decision to be made, the decision needed to be preceded by more than a proportionality assessment and an open-minded conscientious enquiry should have been carried out.
(2) However, when dismissing the claim for possession because of the breach of the PSED, the judge had wrongly applied the test of whether, had that duty been complied with, the same decision would have been inevitable. The correct test was not one of inevitability but rather whether it was “highly likely” that the outcome would not have been substantially different had no breach of duty occurred. On the evidence, in considering whether it was still appropriate to seek possession, the appellant was highly likely to have made the same decision. Housing authorities operated under severe constraints in terms of available accommodation. There was no question that had the respondent and her husband provided honest answers to the questions in the application form, they would not have been granted the tenancy. The premises would have been allocated to other qualifying applicants of whom there were many. The respondent could have afforded to have rented accommodation in the private sector and should have done so. In the face of a continuing shortage of public housing, the appellant was justified in operating a policy of seeking to remove tenants who had obtained their accommodation by deception. The duties owed to other homeless applicants supported and justified that policy. The weight to be accorded to those policy considerations as opposed to the position of the respondent and her daughter as disabled persons was a matter for the appellant as the decision-maker but it was unrealistic to suggest that the balance of reasonableness would in this case have come down in favour of the respondent. Even after paying due regard to the respondent’s disabilities, the appellant could lawfully have decided to continue with the claim for possession and was highly likely to have done so. Accordingly, the appeal would be allowed and the matter remitted to the judge to decide whether it was reasonable to make the order for possession: Forward v Aldwyck Housing Group Ltd [2019] EWCA Civ 1334; [2019] PLSCS 165 applied.
Jonathan Manning and Stephanie Lovegrove (instructed by Perrin Myddleton Solicitors, of Harpenden) appeared for the appellant; Toby Vanhegan and Katie Lines (instructed by Duncan Lewis) appeared for the respondent; Shu Shin Luh (instructed by The Equality and Human Rights Commission) appeared for the intervener.
Eileen O’Grady, barrister
Click here to read a transcript of Luton Community Housing Ltd v Durdana
