Elizabeth Dwomoh considers a recent decision that provides guidance on whether a court can grant relief to a social landlord which has not complied with its public sector equality duty.
Key points
- There is no general rule that, where there has been a breach of the public sector equality duty, any decision taken after such a breach must be quashed or set aside
- If, on the facts, a decision taken by a public body would have been the same if a breach of the public sector equality duty had not occurred, it is unnecessary to quash the decision
The public sector equality duty (PSED) is enshrined in section 149 of the Equality Act 2010 (the 2010 Act). In broad terms it imposes a duty on social landlords, who exercise a public function, to have due regard to the need to eliminate discrimination, advance equality of opportunity for disabled persons and foster good relations between disabled and non-disabled persons.
Most social landlords, when seeking possession against a tenant who is disabled within the meaning of the 2010 Act, will conduct a PSED assessment. This should be carried out in an unbiased manner to ensure that all viable alternatives to eviction are considered. What should be the sanction imposed when a social landlord obtains a possession order when they have failed to comply with their PSED duty?
The factual matrix
In Forward v Aldwyck Housing Group [2019] EWCA Civ 1334; [2019] PLSCS 165, Aldwyck Housing Group (AHG) granted Steven Forward an assured tenancy of a flat in Watford. Forward was physically disabled. He also claimed to be mentally disabled, yet there was no medical evidence to support this claim.
In early 2017 AHG began receiving complaints of anti-social behaviour emanating from Forward’s flat. Following an assault by one of Forward’s visitors on a neighbour, the police attended his flat. The police found that Forward’s flat was being used to cut class A drugs in preparation for sale, and suspected Forward of being the victim of “cuckooing”; namely, when drug gangs take over the address of a vulnerable person and use it as a base for their operations.
AHG served formal warning on Forward to improve his conduct and to restrict named individuals from his flat. Despite the warnings, AHG continued to receive complaints from Forward’s neighbours. In April 2017, AHG served Forward with a notice seeking possession.
In July 2017, AHG issued a claim for possession of the flat in reliance on grounds 12 and 14 of schedule 2 of the Housing Act 1988. AHG argued that Forward was in breach of his tenancy obligations by causing a nuisance and using the flat for illegal purposes.
The possession order
At trial, AHG made a number of concessions in respect of its failings with regard to the PSED. AHG admitted (a) it had conducted a PSED assessment only after possession proceedings were commenced; (b) the PSED assessment had been inadequate because no medical evidence was obtained in relation to Forward’s disability; (c) the assessment had not been conducted with an open mind because AHG had preferred the evidence of the residents to those of the police in relation to Forward’s alleged drugs use; and (d) no other alternatives to possession were considered.
In the county court, Wood J found that Forward was not a victim of cuckooing. On the evidence, she found that he was not mentally disabled and, importantly, there was no causal link between his physical impairment and the anti-social behaviour occurring at his flat. Wood J found that AHG had not complied with the PSED, but that she was not prevented from making a possession order because it was a proportionate means of achieving a legitimate aim.
On appeal to the High Court, Cheema-Grubb J found that Wood J had erred in her approach to AHG’s breach. Compliance with the PSED involved more than a proportionality assessment. It required a rigorous consideration of the impact to seek possession against the objectives encapsulated in the PSED. Notwithstanding the error, Cheema-Grubb J found the breach was immaterial because, had AHG conducted a valid PSED assessment, it would have legitimately made the same decision.
Forward appealed. It was argued on his behalf that, once a social landlord had admitted a breach of the PSED, a court could not grant a possession order.
Same decision
In dismissing the appeal, the Court of Appeal refused to accept that any decision taken after a breach of the PSED must be quashed or set aside. Further, it refused to accept the proposition that a decision taken after a breach would not be quashed only if there were subsequent compliance or where the court was satisfied that future compliance with the PSED would negate the effect of prior non-compliance.
It had also been argued that failure by the court to quash or set aside decisions where a breach of the PSED had occurred would discourage local authorities from complying with the PSED. Surprisingly, the Court of Appeal paid short shrift to this argument. It commented that it was not the role of the court to act as a mentor or nanny to decision-makers.
It was the duty of the court, when deciding the consequences of a breach of the PSED, to look closely at the facts of a particular case. Subject to all other considerations, if the decision would have been the same if the breach had not occurred, there would be no need to quash the decision.
Finally, endorsing Turner J’s reliance on section 31(2A) of the Senior Courts Act 1981 in London and Quadrant Housing Trust v Patrick [2018] EWHC 1263 (QB), the court commented that the High Court must 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 noted that it would have been 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 in defence of the matter.
Main image © Isifa/Shutterstock
Elizabeth Dwomoh is a barrister at Lamb Chambers
